Estate of Shartsis CA4/1

Filed 9/20/16 Estate of Shartsis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Estate of JULIUS LEON SHARTSIS,
Deceased.
D069658
DAVID HO,

Petitioner and Appellant, (Super. Ct. No. PROPS1100741)

v.

LINDA LEE SHARTSIS BRONKEN et
al.,

Contestants and Appellants.

APPEAL from orders of the Superior Court of San Bernardino, Tara Reilly, Judge.

Order granting contest and denying petition to probate reversed; order granting summary

adjudication affirmed.

DeCastro, West, Chodorow, Mendler, Glickfeld & Nass, Inc., Jerry L. Kay and

Joseph Klapach for Petitioner and Appellant.
 Law Office of Gary C. Wunderlin and Gary C. Wunderlin for Contestants and

Appellants.

In this opinion, we consider an appeal and cross-appeal from orders of the probate

court arising from proceedings regarding the estate of Julius Leon Shartsis. In the appeal,

a beneficiary of Shartsis's will, David Ho, challenges the trial court's order granting the

contest filed by Shartsis's children Linda Lee Shartsis Bronken (Linda) and Gary Lee

Shartsis (Gary) on the basis that Shartsis was suffering from a delusion when he executed

his will.1 In the cross-appeal, Gary and Linda challenge the probate court's order

granting summary adjudication in favor of Ho on their causes of action alleging that Ho

exercised undue influence over Shartsis and committed fraud in causing Shartsis to make

his will.

We conclude that as to Ho's appeal from the order granting Gary and Linda's

contest, the trial court's finding that Shartsis suffered from a delusion of the type required

to establish lack of capacity is not supported by substantial evidence. As to Gary and

Linda's cross-appeal from the summary adjudication on the undue influence and fraud

causes of action, we conclude that the trial court properly granted summary adjudication.

Accordingly, we reverse the order granting Gary and Linda's contest, and we affirm the

order granting summary adjudication in favor of Ho.

1 For the sake of clarity, we refer to Shartsis's children by their first names, and we
intend no disrespect by doing so.

2
 I

FACTUAL AND PROCEDURAL BACKGROUND FOR HO'S APPEAL

As we have explained, the matter before us concerns both (1) Ho's appeal from the

trial court's decision granting Gary and Linda's will contest, and (2) Linda and Gary's

cross-appeal of the trial court's ruling granting summary adjudication on the undue

influence and fraud causes of action. We will first discuss and resolve Ho's appeal.

A. Shartsis's Family Relationships

Shartsis, who committed suicide on September 29, 2011, at age 79, had three

children: Gary and Linda, and their brother Dale Lee Shartsis. Shartsis kept in contact

with Gary and Linda over the years, but had no contact with Dale for the last 25 or 30

years of his life.

Shartsis was divorced from the children's mother around the late 1960's, when

Linda was approximately age 10 and Gary was approximately age eight. After the

divorce, Gary and Linda saw Shartsis for daytime visits on a regular basis while they

were growing up. Shartsis lived in the greater Los Angeles area until 1988, when he

moved to Victorville.

Linda moved to the Lake Tahoe area in 1977, and thereafter visited with Shartsis

about once a year. She also kept in contact with Shartsis by telephone, e-mail and

holiday cards. Shartsis did not attend Linda's wedding, although he was invited, and

sometimes would visit the Lake Tahoe area without seeing Linda or telling her he was

there. According to Linda's description, she viewed Shartsis as a frugal, self-centered,

difficult and eccentric person, who would cut off communication with people for petty

3
reasons. Nevertheless, Linda stated that she had a loving relationship with her father and

felt close to him.2 As Shartsis aged and developed medical problems, Shartsis did not

keep Linda informed about the details of his surgeries and hospitalizations, which Linda

found out about only after the fact.

Gary continued to live in the Los Angeles area, and would generally see Shartsis

every month or two after Shartsis moved to Victorville. Gary would also speak with

Shartsis on the telephone and keep in contact with him by e-mail and holiday cards. As

did Linda, Gary described Shartsis as frugal, self-centered, difficult and eccentric. As

Gary explained, Shartsis cut off contact with him several times. For example, in 2006 or

2007 Shartsis cut off contact because he disagreed with how much ice Gary put in a drink

at Burger King. Shartsis also cut off contact with Gary more than once because Gary

supplemented the small tips that Shartsis left at restaurants. Finally, Shartsis also became

distant and cut off contact after Gary informed Shartsis that he had been diagnosed with

cancer around 2009. Gary felt that Shartsis believed that Gary was blaming him for

passing on genes that predisposed him to cancer and also acted like he could "catch"

2 Although Linda described a close relationship with Shartsis, it is evident that
Shartis was distancing himself from Linda shortly after the 2009 Will was executed. In
an e-mail that Linda wrote to a relative in January 2010, she stated, "I have tried to talk to
and write to Dad. He just writes short e-mails back and never responds when I want to
stop by and visit."

4
cancer from Gary.3 Despite these difficulties, Gary believed that he and his father loved

each other and had a close relationship.

On several occasions, Shartsis told medical personnel that he had no next of kin or

that he had not seen his children in many years. However, Shartsis spoke with his friends

and neighbors about Gary and Linda and his visits with them, and he seemed to be proud

of them.

B. Shartsis's Relationship with Ho and Pacific BMW

Before he moved to Victorville in 1988, Shartsis owned an auto repair shop and a

used car lot on Brand Boulevard in Glendale, and he lived in an apartment on the

property (the Brand Property). Next door to the Brand Property was the Pacific BMW

auto dealership that Ho opened in 1982. Ho has a Masters of Business Administration

from the University of Southern California and previously worked in corporate banking.

3 E-mails in March 2010 from Gary to Shartsis show that Shartsis had cut off
communication with Gary around that time. First, on March 2, 2010, Gary wrote to
Shartsis about an upcoming cancer surgery, stating, "I know how you feel about me but I
wanted you to know before you heard it from some one [sic] else. . . . I am sorry I have
not been able to talk to you but it is OK. It was like this for many years and you
obviously have your reasons. I am not perfect." Then, on March 16, 2010, Gary wrote to
Shartsis, "I don't know what I did to you. I called you a couple times and you said you
were busy. . . . This is not a game for me. I just e[-]mailed you so you would know
about the cancer and my life from me and not a stranger. I am sorry for what ever [sic] I
did. I know that to be forgiven you have to understand how to forgive and I am trying
very hard." An e-mail in February 2011 from Gary to Steve Lindstrom shows that
Shartsis had cut off contact with Gary around that time period: "My dad has responded
to my letters with his jokes and chain e[-]mails with no reply to any of my
correspondences. He may not know about my cancer or surgeries. . . . Dad was upset
when his neighbors contacted me following his knee and back issues awhile back."

5
 Ho and Shartsis met in 1982, and as business neighbors, they spoke to each other a

few times a week, exchanging pleasantries and discussing cars and business. Ho and

Shartsis did not socialize with each other outside of their acquaintance at their places of

business. After Shartsis moved to Victorville, Ho saw Shartsis about once a year when

Shartsis came to the Pacific BMW dealership, but he did not otherwise socialize with

Shartsis.

In 1985, Ho and Shartsis entered into a lease agreement, under which Ho, on

behalf of Pacific BMW, leased from Shartsis a portion of the Brand Property that Shartsis

was no longer using, consisting of service bays and parking spaces. When Shartsis

closed his business and moved to Victorville, the scope of the lease was expanded to

include all of the Brand Property.

Sometime around 1995, Ho and Shartsis agreed that in lieu of yearly adjustments

of the lease payment based on the consumer price index, Ho would pay for Shartsis to

lease a new BMW, to Shartsis's specifications, every two or three years. By all accounts,

Shartsis was very proud of his leased BMW, and witnesses testified that Shartsis would

talk at length to them about his car and would insist on showing off its features to them.

In approximately 2002, Ho decided to build a new building at Pacific BMW that

would be partially located on the Brand Property. Ho asked Shartsis if he would sell the

Brand Property to him, but Shartsis declined, explaining that he preferred the regular

income from a lease and he did not want to pay income tax on his profits from a real

estate sale. In October 2002, Ho's limited liability company and Shartis entered into a

ground lease for the Brand Property with a term of 99 years. The ground lease provided

6
for a monthly lease payment to Shartsis of $7,500 per month, personally guaranteed by

Ho, and it further stated that, consistent with the terms of Shartsis's last will and

testament, the Brand Property would pass to Ho, provided Ho was the majority owner of

the tenant of the property. In connection with the ground lease, Shartsis continued to

receive a leased BMW free of charge.

In 2006, as Ho testified, Shartsis had $850,000 that had been held in a certificate

of deposit at the bank, but Shartsis wanted to invest the funds at a higher interest rate than

the bank would provide. According to Ho, Shartsis approached him about the idea of

making a loan of $850,000 to Pacific BMW at a higher interest rate than the bank would

provide to Shartsis. Ho agreed, and in 2006, Shartsis made an unsecured loan to Ho in

the amount of $850,000. In 2008, Shartsis requested that Ho increase the amount of the

loan to $1 million, as he had an additional $150,000 in the bank that he wanted to invest.

On a yearly basis until Shartsis's death, Ho and Shartsis renewed the $1 million loan, with

appropriate changes in the interest rate.

Numerous witnesses testified that Shartsis constantly boasted about his

relationship with Pacific BMW. Shartsis would sometimes refer to himself as a "partner"

in the dealership, but at other times he would more specifically and accurately describe

the fact that he was leasing land to Pacific BMW and that he loaned it money. Shartsis

carried around a copy of the $1 million note to Pacific BMW in his wallet and showed it

to people to impress them, and he would show his neighbors proof that he was receiving

lease payments from Pacific BMW.

7
 Steven Lindstrom was the general manager at Pacific BMW and met Shartsis

around 1987. Before Shartsis moved to Victorville, Lindstrom and Shartsis were

acquaintances who exchanged pleasantries. After that, Lindstrom communicated with

Shartsis because he was in charge of obtaining the leased BMW for Shartsis. In that

capacity, Lindstrom communicated with Shartsis by phone and e-mail and saw Shartsis

when he came into the dealership about once a year, sometimes having lunch with him.

C. Testamentary Documents

1. The 2009 Will

The operative testamentary document at the time of Shartsis's death was a will that

Shartsis executed on April 28, 2009 (the 2009 Will), naming Ho as executor. The 2009

Will made the following bequests: (1) all of Shartsis's property to Ho, whom the 2009

Will describes as a "friend"; (2) 90 percent of any residue to Ho; and (3) 10 percent of

any residue to Lindstrom, also described as a "friend." The 2009 Will identified

Shartsis's three children but made no bequest to them. The 2009 Will was drafted by

attorney Carolyn Schauf-McCarter (Schauf) based on handwritten notes that Shartsis

gave to her when she met with Shartsis in person and discussed his estate planning.

Evidence in the record sheds light on Shartsis's reasons for not including his

children in the 2009 Will. Shartsis wrote to Ho in April 2009 explaining the 2009 Will.

He stated, "All the children are excluded to make sure that you will not have a problem

handling the will. They are not honest and are my friends only for what they can get

when I die. Gary is also excluded from the will for reasons that he has done to me

personally [sic]. There is none of my children in the will." Similarly, in an April 2009

8
telephone conversation between Ho and Shartsis about the 2009 Will, Shartsis told Ho he

"just didn't trust his kids." On an unspecified date, Shartsis told a friend that "he wasn't

really happy with his children so they were getting cut out of the will."

Also of relevance to Shartsis's view of Gary's and Linda's character and their

relationship with him, Shartsis told a friend within the last seven or eight years of his life

that "his kids loved him only for the money." In addition, both Lindstrom and Ho

testified about Shartsis's negative reaction to his children's dispute over their mother's

estate in the late 2000's.4 Lindstrom testified that when Shartsis's ex-wife died Shartsis

"called me and told me that she died and that his kids were being like vultures." Ho

testified that Shartsis told him that after Shartsis's ex-wife died, "he was upset . . . the kids

were fighting over the mom's estate."5

2. Prior Wills

Prior to the 2009 Will, Shartsis made several wills, some of which were admitted

at trial.6

In October 1986, Shartsis executed a will (the 1986 Will) that gave (1) one dollar

to each of his three children; (2) all of his tangible personal property to his siblings;

4 Based on an e-mail contained in the record, it appears that Shartsis's ex-wife died
in January 2006.

5 Two e-mails in the appellate record appear to be communications between Gary
and Shartsis in January 2007 and March 2007 discussing the siblings' dispute over their
mother's estate.

6 As we will discuss, Shartsis's 1974 will was not admitted into evidence at trial.

9
(3) 60 percent of his residual estate to his siblings; (4) 35 percent of his residual estate to

Ho, in addition to giving Ho the right to purchase the Brand Property at fair market value;

and (5) 5 percent of his residual estate to a friend.

In February 1996, Shartsis executed a will (the 1996 Will) that gave (1) all of his

tangible personal property to his three children; (2) 60 percent of the residual estate to his

three children, in equal shares; and (3) 40 percent of the residual estate to Ho, in addition

to giving Ho the right to purchase the Brand Property at fair market value. Ho was

named as executor of the will.

In July 2001, Shartsis executed a will (the 2001 Will) that gave (1) all of his

tangible personal property to his three children in equal shares; (2) the Brand Property to

Ho; (3) 15 percent of the residual estate to the three children in equal shares; and (4) 85

percent of the residual estate to Ho. The bequest of the Brand Property and 85 percent of

the residual estate to Ho were made on the condition that Ho or "a corporation in which

he is a majority shareholder" is leasing and in possession of the Brand Property at the

time of Shartsis's death. Ho was once again named as executor of the will.

In October 2002, Shartsis executed a will (the 2002 Will) that was identical to the

2001 Will, except that the language regarding the conditions for Ho receiving the Brand

Property and 85 percent of the residual estate were changed to broaden the type of legal

entity that could be leasing and possessing the Brand Property in association with Ho at

the time of Shartsis's death. Specifically, the reference to Ho or "a corporation in which

he is a majority shareholder" in the 2001 Will was amended to provide that "at the time

of my death . . . [Ho], or a corporation, limited liability company, partnership or other

10
form of entity in which [Ho] owns a majority interest, is then leasing said property from

me, and said property is in the possession of an entity in which [Ho] owns a majority

interest."

D. Proceedings in the Probate Court

After Shartsis died on September 29, 2011, Ho filed a petition to probate the 2009

Will on October 20, 2011 (the Petition). Linda and Gary filed a contest and opposition to

probate of the 2009 Will on November 21, 2011 (the Contest). The Contest alleged that

probate of the 2009 Will should be denied because (1) Shartsis was not of sound mind

and therefore lacked capacity at the time he executed the 2009 Will; (2) the 2009 Will

was made as a direct result of Ho's undue influence on Shartsis; and (3) the 2009 Will

was procured by Ho's fraud.

The trial court granted summary adjudication in favor of Ho on the undue

influence and fraud causes of action. That ruling is the subject of Gary and Linda's cross-

appeal, which we discuss in section III.

The matter proceeded to a bench trial on the remaining cause of action alleging

that Shartsis lacked capacity when he executed the 2009 Will. Gary and Linda's theories

at trial were that at the time of executing the 2009 Will Shartsis was suffering from two

delusions: (1) that he was a partner in Pacific BMW, and that his partner Ho was a dear

friend; and (2) that he did not have a relationship with his children.

Regarding Shartsis's delusion as to his relationship with his children, Gary and

Linda's expert witness, David W. Trader, offered two central opinions. First, he testified

that the statements that Shartsis made to medical providers about having no next of kin or

11
being estranged from his family established that Shartsis was suffering from the delusion

that he had no children or no relationship with them. However, during his testimony,

Trader also offered a second view as to the type of delusion that Shartsis held concerning

his children, which took into account the fact that Shartsis seemed to realize in his

everyday life that he had children and that he had an ongoing relationship with them. As

Trader explained, Shartsis's delusion was that "essentially he had no relationship in the

sense that no good relationship with his children [sic] or he minimized that relationship

with his children." (Italics added.)

In a lengthy oral ruling occurring one week after the end of the trial, the trial court

rejected the first claim of delusion, concluding that there was some basis in fact for

Shartsis to have believed that he was a partner in Pacific BMW with his friend Ho, in that

he leased land to the dealership and made a $1 million loan to it. However, as to the

second claim of delusion, the trial court found that Shartsis was suffering from a delusion

regarding his relationship with Gary and Linda at the time he executed the 2009 Will.

The trial court rejected the proposition that Shartsis's statements to medical

providers that he had no next of kin or had not seen his children in many years was

evidence that Shartsis was under a delusion that he had no children or was estranged from

his children. The trial court found: "I think the reason that he told people that he was

estranged or hadn't had contact with his family when he was in the hospital, he didn't

want you to call, he didn't want you to know."

The trial court did however find that Shartsis was suffering from the second type

of delusion described by Trader concerning his children, namely a delusion as to the

12
quality of his relationship with his children and their motivation for maintaining contact

with him. Specifically, the trial court explained, "I'm going to find that [Shartsis] did not

have the testamentary capacity to execute the 2009 [W]ill, but for his delusional beliefs

that he had no relationship with his children, that his children were the vultures and

money hungry children that he would say they were, but for those beliefs I do not believe

that he would have executed that particular will." Reviewing the evidence, the trial court

described the ongoing contact Shartsis had with Gary and Linda, and explained, "There is

absolutely no evidence that you were vultures. I have no evidence in front of me that you

attempted to act in any kind of, Gee, Dad, I could use a few bucks, trying to access any of

his bank accounts. . . . Nothing to suggest there is any evidence anywhere at all that all

you were after was his money, that you were vultures, that you didn't love him, that you

didn't like him, that the only reason you drove all those hours . . . to visit for a few hours

. . . was because you were hoping for a few bucks when he died. All the evidence I have

is quite to the contrary. . . . You've spent years convincing yourself that you have this

loving relationship with your father. That is the evidence I've got."

The trial court formally entered an order granting the Contest and denying Ho's

Petition on June 6, 2014. Ho filed a notice of appeal.

13
 II.

LEGAL ANALYSIS OF HO'S APPEAL

A. Ho's Argument That the Trial Court Erred in Failing to Issue a Statement of
Decision Lacks Merit

We first consider Ho's contention that the trial court erred in failing to issue a

statement of decision.

Code of Civil Procedure section 632 states that although a trial court is not

required to issue written findings of fact and conclusions of law following a bench trial,

for trials lasting more than one day a party may request a written statement of decision

within 10 days of the court announcing its decision. (Ibid.) The statement of decision

"shall be in writing, unless the parties appearing at trial agree otherwise." (Ibid.)7 Ho

filed a timely request for a written statement of decision on October 10, 2013, less than

10 days after the trial court issued its oral decision granting the Contest on October 2,

2013.

After Ho's request for a written statement of decision, the trial court indicated in a

November 7, 2013 order that it "finds good cause to issue its Statement of Decision no

later than December 27, 2013." However, at an April 23, 2014 hearing, the trial court

indicated that it had not yet issued a statement of decision. The trial court explained that

it "completely misunderstood" and "terribly screwed up," as it erroneously believed that

7 Further, the California Rules of Court provides that the trial court shall prepare
and serve a proposed statement of decision within 30 days of the request, but for good
cause the trial court may extend that deadline. (Id., rule 3.1590(f), (m).)

14
the parties wanted to wait until a private mediation process was finished before receiving

the statement of decision. During the April 23, 2014 hearing, the trial court stated that it

was prepared to "finish . . . up" the statement of decision "very quickly" if Ho still wanted

to receive it.

Counsel for Ho indicated that he was no longer requesting the statement of

decision, explaining, "Well, it seems to me that the statement of decision is kind of that

ship [that] left the station." Counsel continued, "And I think that the law provides that

[if] there is no statement of decision, that your oral -- ." The trial court finished counsel's

thought, "The oral statement becomes the statement." Counsel replied, "I think so."

Opposing counsel then expressed his view, explaining "I don't have any problem with

that. I just want to make sure there is no assertion of error later on." Counsel for Ho did

not respond to or dispute opposing counsel's statement. No further discussion was held

on the issue, and the trial court did not issue a statement of decision before it entered a

formal order granting the Contest and denying the Petition.

Ho contends on appeal that "[t]he judgment in this case is subject to automatic

reversal because the trial court failed to issue a statement of decision upon Mr. Ho's

timely request."8 We reject the argument because the discussion quoted above shows

that Ho withdrew his request for a written statement of decision. Specifically, although

8 As the parties acknowledge, our Supreme Court currently has before it the issue of
whether a trial court's failure to render a statement of decision after a timely party request
is reversible per se, with no inquiry into prejudice. (F. P. v. Monier, review granted
Apr. 16, 2014, S216566.) As we conclude that the request for a statement of decision
was withdrawn, the issue pending before our Supreme Court is not relevant here.
15
the trial court clearly communicated that it was prepared to issue a statement of decision,

counsel for Ho indicated at the April 23, 2014 hearing that he no longer wanted to receive

a written statement of decision. Instead, he stated that he would allow the trial court's

oral pronouncement to function as the statement of decision. Opposing counsel stated

that he had no problem with that approach.

"A party may waive his or her right to a written statement of decision. [Code of

Civil Procedure s]ection 632 provides that '[t]he statement of decision shall be in writing,

unless the parties appearing at trial agree otherwise.' (Italics added.)" (Whittington v.

McKinney (1991) 234 Cal.App.3d 123, 129-130.) The parties here waived the right to a

statement of decision at the April 23, 2014 hearing by agreeing that the trial court's oral

ruling would serve as the statement of decision.

Further, any error by the trial court by failing to issue a statement of decision was

invited by Ho, because Ho declined the trial court's offer to issue a written statement of

decision at the April 23, 2014 hearing. Ho may not rely on an invited error as the basis

for a reversal on appeal. (Horsemen's Benevolent & Protective Assn. v. Valley Racing

Assn. (1992) 4 Cal.App.4th 1538, 1555 [under the doctrine of invited error, "[w]here a

party by his conduct induces the commission of error, he is estopped from asserting it as

a ground for reversal"]; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403

[explaining invited error doctrine].)

16
B. Ho Has Not Established That the Trial Court Abused Its Discretion in Excluding
Certain Evidence Regarding Shartsis's Prior Wills

We next consider Ho's argument that the trial court erred in excluding two items of

evidence during trial. The first item was a will that Shartsis executed in 1974 that left his

entire estate to a friend rather than to his children (the 1974 Will), and which was

identified at trial as exhibit 183. The second item was a videotape prepared

contemporaneously with Shartsis's execution of his 2002 Will (the 2002 Video), in which

he explained why he was leaving each of his children only five percent of the residue of

his estate, detailing the extent of his contact with his children and stating that "all my

children aren't very close to me at all."

Regarding the 1974 Will, Ho's appellate argument that the trial court erred in

excluding that item is without merit because Ho points to nothing in the record showing

that the trial court made a ruling excluding that document. Indeed, according to our

review of the record, the only two times that exhibit 183 (i.e., the 1974 Will) was

mentioned during trial was (1) when exhibit 183 was identified during the testimony of

Trader, who stated that he had considered it in formulating his expert opinion; and

(2) when, at the end of trial, the parties identified exhibit 183 as one of the documents

that they were stipulating would not come into evidence. We accordingly reject Ho's

argument that the trial court erred as to the 1974 Will.

Turning to the 2002 Video, that evidence was the subject of a motion in limine by

Gary and Linda to exclude it at trial. While considering motions in limine prior to trial,

the trial court tentatively ruled that it would exclude the 2002 Video because the issue of

17
Shartsis's capacity to make the 2002 Will was not at issue. However, the trial court

qualified its ruling by stating that if Gary and Linda's expert witness Trader testified at

trial that he relied on the 2002 Video in reaching his expert opinion, it would revisit the

issue.

During trial, Trader testified that he reviewed the 2002 Video as part of his

analysis, although he qualified that statement by explaining that at the time of his

analysis, his assignment was to examine Shartsis's capacity to make both the 2002 Will

and the 2009 Will. After that testimony, the trial court revisited its tentative ruling on the

motion in limine and decided to affirm it by excluding the 2002 Video. As the trial court

explained, although the 2002 Video may be "relevant to some extent" it was not

sufficiently relevant to warrant the time required to view the video. The trial court

observed that the validity of the 2002 Will was not an issue presented at trial. Further, to

the extent that the terms of Shartsis's 2002 Will were relevant to deciding whether

Shartsis lacked capacity to make the 2009 Will, the trial court observed that it already had

the 2002 Will before it.9

We apply an abuse of discretion standard when reviewing the trial court's ruling

excluding the evidence of the 2002 Video. (People v. Fuiava (2012) 53 Cal.4th 622,

663.)

As the trial court's ruling excluding the 2002 Video was based primarily on its

view that it would consume too much time to view the video, which was not warranted in

9 The 2002 Will was admitted into evidence.

18
light of its minimal relevance, the trial court appears to have relied on Evidence Code

section 352. Under that provision, "[t]he court in its discretion may exclude evidence if

its probative value is substantially outweighed by the probability that its admission will

(a) necessitate undue consumption of time or (b) create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury." (Ibid., italics added.)

Here, in conducting the weighing required by Evidence Code section 352, the trial

court was well within its discretion to conclude that the 2002 Video had only slight

probative value because its main purpose was to establish Shartsis's capacity to make the

2002 Will, which was not an issue at trial. Weighing this minimal relevance against the

consumption of time that would be entailed in locating a device to play the video and to

watch it, the trial court could reasonably decide that the 2002 Video should be excluded

under Evidence Code section 352.

C. The Finding That Shartsis Suffered from a Delusion About His Children Sufficient
to Incapacitate Him from Executing the 2009 Will Is Not Supported by Substantial
Evidence

The final issue in Ho's appeal is whether sufficient evidence supports the trial

court's decision that Shartsis suffered from an incapacitating delusion within the meaning

of the Probate Code.

1. Burden of Proof and Standard of Review

"Competency to make a will is presumed. . . . The burden is on the contestant to

prove that at the very time of the execution of the will testat[or] was incompetent."

(Estate of Goetz (1967) 253 Cal.App.2d 107, 112-113, citations omitted.) As the parties

contesting the validity of the 2009 Will, Gary and Linda "had the burden of proving

19
[Shartsis] was delusional at the time of executing the will." (Goodman v. Zimmerman

(1994) 25 Cal.App.4th 1667, 1678 (Goodman).)

In reviewing the trial court's finding that Shartsis suffered from a delusion under

which he lacked capacity to execute the 2009 Will, we apply a substantial evidence

standard of review. (Goodman, supra, 25 Cal.App.4th at p. 1678.) "In our review for

substantial evidence, we look at the evidence in support of the successful party,

disregarding the contrary showing. . . . All conflicts in the evidence are resolved in favor

of the respondent. All legitimate and reasonable inferences are indulged in order to

uphold the verdict if possible." (Ibid., citation omitted.)

2. Applicable Law

Under Probate Code section 6100.5 (hereafter, section 6100.5), a person is not

mentally competent to make a will if, at the time he executes the will, among other

things, "[t]he individual suffers from a mental disorder with symptoms including

delusions or hallucinations, which delusions or hallucinations result in the individual's

devising property in a way which, except for the existence of the delusions or

hallucinations, the individual would not have done." (Id., subd. (a)(2).)

The original version of section 6100.5 was enacted in 1985. (Goodman, supra, 25

Cal.App.4th at p. 1676, citing legislative history.) "[T]he language and legislative history

of section 6100.5 demonstrate that the statute was intended to closely adhere to the

common law decisions as it pertained to testamentary capacity." (Id. at p. 1677.) Thus,

"[t]o the extent that the language of section 6100.5 presents any ambiguity with respect to

delusions and the level of proof required, . . . the statute was basically tracking the law as

20
applied in California prior to its enactment." (Id. at p. 1676.) Among other things, the

legislative history states that " '[t]he purpose of this bill is to codify the standards for

determining lack of testamentary capacity contained in Estate of Perkins (1925) 195 Cal.

699 . . . , and subsequent decisions.' " (Id. at p. 1677.)

We accordingly turn to the case law to further define the term "delusion" as used

in section 6100.5. As we will explain, three fundamental principles govern the question

of whether a false belief is a "delusion" within the meaning of section 6100.5.

a. But-for Causation

First, as explained in Estate of Perkins, supra, 195 Cal. 699 (Perkins), to establish

lack of testamentary capacity based on a delusion, there must be a but-for causal

relationship established between the testator's delusion and the making of the will. "The

evidence must establish that the will itself was the creature or product of such

hallucination or delusion; that the hallucination or delusion bore directly upon and

influenced the creation and terms of the testamentary instrument. The evidence must

establish, in addition to the fact of the existence of the hallucinations or delusions, the

fact that by reason of these hallucinations or delusions the testatrix devised or bequeathed

her property in a way which, except for the existence of such delusions, she would not

have done." (Id. at p. 704.)

b. Belief Not Based on Any Existing Facts

Second, no delusion exists within the meaning of section 6100.5 when the

testator's irrational and false belief nevertheless has some basis in fact.

21
 "An insane delusion has been defined to be the conception of a disordered mind

which imagines facts to exist of which there is no evidence and the belief in which is

adhered to against all evidence and argument to the contrary, and which cannot be

accounted for on any reasonable hypothesis. 'One cannot be said to act under an insane

delusion if his condition of mind results from a belief or inference, however irrational or

unfounded, drawn from facts which are shown to exist.' " (Estate of Putnam (1934) 1

Cal.2d 162, 172 (Putnam).) Thus, " '[i]f there is any evidence, however slight or

inconclusive, which might have a tendency to create a belief, such belief is not a

delusion.' " (Estate of Alegria (1948) 87 Cal.App.2d 645, 655 (Alegria).) Under this

rule, "even if one's beliefs are inaccurate, a mistaken belief does not justify overturning a

will where there is any evidence supporting the belief." (Goodman, supra, 25

Cal.App.4th at p. 1676, italics added.)

c. The Testator's Belief Regarding the Quality of His Relationship with
Family Members Does Not Qualify as Delusion

Third, a testator's mistaken and irrational belief about the quality of his

relationship with family members does not constitute the type of delusion sufficient to

establish lack of capacity to make a will under section 6100.5.

In Perkins, the testatrix bequeathed the small sum of $250 to each of two siblings

who resided in Iowa, with the bulk of her estate going to "a young man whom the

decedent met some two years prior to her death." (Perkins, supra, 195 Cal. at p. 702.)

The siblings challenged the will, contending that the testatrix lacked capacity at the time

she executed the will. Specifically, as Perkins explained, "Contestants, in support of their

22
contention that the testatrix was of unsound mind generally, and at the time of the making

of the will, rely chiefly upon the alleged 'unwarranted' belief of the testatrix that her

relatives were not interested in her and that they would be glad to hear of her death. This

belief, it is argued, was an insane delusion, which resulted in an antipathy to her relatives

and prompted and influenced her in the making of the will." (Id. at p. 708.)

Perkins rejected the argument, explaining "[t]he fact that the relatives of the

testatrix in their own minds held nothing but the most friendly feelings toward the

testatrix will not suffice to warrant the conclusion that because the testatrix believed,

mistakenly, perhaps, that the relatives were in fact unfriendly, she was the victim of an

insane delusion . . . ." (Perkins, supra, 195 Cal. at p. 709, citation omitted, italics added.)

As Perkins pointed out, " 'Prejudices, dislikes, and antipathies, however ill-founded, or

however strongly entertained, cannot be classed as insane delusions, nor is every delusion

an insane delusion.' . . . [¶] Care must be taken to differentiate between mere

unreasonable opinions and mental derangements. Testamentary capacity does not depend

upon the testatrix's ability to reason logically or upon her freedom from prejudice. A

belief may be illogical or preposterous, but it is not therefore evidence of insanity." (Id.

at p. 708.)10 Therefore, the testatrix's "belief as to the lack of cordiality in the relations

10 Earlier case authority from our Supreme Court is in accord. For example, as
explained in Estate of Hess (1920) 183 Cal. 589 (Hess), " 'The likes and dislikes of
human beings — their confidences and mistrusts — are often capricious and arbitrary;
but they are not evidences of insanity because they cannot be logically defended to the
satisfaction of those who think them wrong. . . . "The right of a testator to dispose of his
estate depends neither on the justice of his prejudices nor the soundness of his
reasoning." ' " (Id. at p. 596.) In Estate of Calef (1903) 139 Cal. 673 (Calef) our
23
of herself and her eastern relatives was not a delusion in the usual and legal acceptation

of the term." (Perkins, at p. 708, italics added.) Perkins explained that a belief in the

quality of a familial relationship does not constitute a delusion sufficient to establish

incapacity because "[t]he existence of cordial relations depends upon the attitude of both

parties. It may well have been that the [contestant] entertained none but the most kindly

feelings toward her sister. This is not incompatible with the fact that the testatrix may not

have reciprocated those feelings. And if she did not, she was justified in her belief that

cordial relations did not exist between herself and her [sibling]." (Ibid.)

Perkins's holding that an irrational belief about the quality of a testator's

relationship with family members is insufficient to establish lack of capacity continues to

be a fundamental principle of our probate law. As recognized by Witkin, citing Perkins

and Hess as support, "[p]rejudices or false beliefs concerning relatives" are not regarded

as sufficient to establish incompetency to make a will. (14 Witkin, Summary of Cal. Law

(10th ed. 2005) Wills and Probate, § 125, subd. (5), p. 189.) The court in Alegria, supra,

87 Cal.App.2d 645, summarized the controlling law as follows: "Capricious and

Supreme Court disapproved of a jury instruction which told "the jury, substantially, that
if the testatrix, at the time she made the codicil had a certain belief as to the affection and
sincerity of the contestant, and that the latter cared only for her property, etc., and that the
jury thought that said belief was 'without foundation in fact,' and not based on 'any
information or evidence on the subject communicated to her,' then the jury should find"
she was suffering from a delusion. (Id. at p. 675.) The court explained that a delusion
could not be established merely "[b]ecause the testatrix had a belief as to the affection,
motives, etc., of another person, which the jury thought was not founded in fact, and on
evidence or information communicated to her," as "[t]he sanest of people have notions as
to the character of the feelings, etc., of others, which many people would consider
unfounded." (Ibid.)

24
arbitrary likes, dislikes and mistrusts are not evidence of unsoundness of mind. . . .

'Prejudices, dislikes, and antipathies, however ill-founded, or however strongly

entertained, cannot be classed as insane delusions, nor is every delusion an insane

delusion.' . . . The fact that a person dislikes his relatives, with or without reason, is not

necessarily proof of unsoundness of mind. . . . 'People may hate their relatives for bad

reasons, and yet not be deprived of testamentary power.' . . . A testatrix 'has the right to

make an unjust, or an unreasonable, or even a cruel will, and that no will may be legally

set aside upon the mere establishment that it is such a will.' . . . 'Irritability and bad

temper may result in unnatural actions, but they are not inconsistent with testamentary

capacity.' " (Id. at pp. 655-656.)

3. Substantial Evidence Does Not Support the Trial Court's Finding That
Shartsis Suffered from a Delusion Within the Meaning of the Probate Code

a. Evidence That Shartsis Believed Gary and Linda Loved Him Only
for His Money Does Not Support a Finding That Shartsis Suffered
from a Delusion Because Such a Belief Is About the Quality of a
Familial Relationship

As we have explained, the trial court accepted Trader's opinion that Shartsis was

under a delusion that he had no "good" relationship with his children, citing evidence that

Gary and Linda did love their father and were not just interested in his money. As

expressed by the trial court, Shartsis's delusion took the form of an irrational belief that

"he had no relationship with his children, that his children were the vultures and money

hungry children that he would say they were," "that all [they] were after was his money,

. . . that [they] didn't love him, [and] that [they] didn't like him." Put simply, the trial

court found that Shartsis was under a delusion that his children were not close to him and

25
did not love him, which grew out of his suspicion that they were primarily interested in

his money and were not interested in building a relationship with him.

Based on the long-standing case law we have cited above, however, a testator's

mistaken and irrational belief about the quality of his relationship with family members

and the sincerity of their affection simply does not constitute a delusion sufficient to

establish lack of capacity to make a will under section 6100.5. (Perkins, supra, 195 Cal.

at pp. 708-709; Hess, supra, 183 Cal. at p. 596; Alegria, supra, 87 Cal.App.2d at pp. 655-

656.) As in Perkins, "[t]he fact that the relatives of [Shartsis] in their own minds held

nothing but the most friendly feelings toward [him] will not suffice to warrant the

conclusion that because [Shartsis] believed, mistakenly, perhaps, that the relatives were

in fact unfriendly, [he] was the victim of an insane delusion." (Perkins, at p. 709, italics

added.) As in Calef, Shartsis's "belief as to the affection and sincerity of [Gary and

Linda], and that [they] cared only for [his] property" does not constitute a delusion

sufficient to establish a lack of capacity because they are "belief[s] as to the affection,

motives, etc., of another person." (Calef, supra, 139 Cal. at p. 675.)

Shartsis's belief that Gary and Linda were interested in him only because of his

money, and thus had no real relationship with him, may have been " 'capricious and

arbitrary,' " may not have been able to be " 'logically defended to the satisfaction of those

who think them wrong' " (Hess, supra, 183 Cal. at p. 596), and may even have been

"illogical or preposterous" (Perkins, supra, 195 Cal. at p. 708), but it is "not a delusion in

the usual and legal acceptation of the term" (ibid.). Therefore, the trial court's finding

26
that Shartsis suffered from a delusion within the meaning of section 6100.5 is not

supported by substantial evidence.

b. Shartsis's Beliefs About the His Relationship with Gary and Linda
Does Not Constitute a Delusion Because Those Beliefs Could Have
a Basis in Fact

The trial court's finding that Shartsis suffered from a delusion regarding his

children also fails to support a finding that Shartsis lacked testamentary capacity because

Shartsis's belief could have had some basis in fact and thus was not a wholly irrational

delusion within the meaning of section 6100.5.

As the case law cited above establishes, "[E]ven if one's beliefs are inaccurate, a

mistaken belief does not justify overturning a will where there is any evidence supporting

the belief." (Goodman, supra, 25 Cal.App.4th at p. 1676, italics added.) This rule

applies when the belief is based on evidence "however slight, or inconclusive." (Alegria,

supra, 87 Cal.App.2d at p. 655.)

For one thing, the evidence presented at trial establishes a possible factual basis

for Shartsis's belief that Gary and Linda were, as the trial court described, "money

hungry" and "vultures" who were interested in him for his money. Specifically, the

record contains evidence that Shartsis was disturbed by his children's behavior after his

ex-wife died, as he perceived them as fighting over her estate and acting like "vultures."

Based on that experience, Shartsis could have formed the belief that his children were

just as interested in his money as their mother's and that they kept in contact with him

mainly for that reason.

27
 In addition, the evidence at trial establishes a possible factual basis for Shartsis's

belief, as described by the trial court, that Gary and Linda "didn't love him" and "didn't

like him." As to Gary, the evidence showed that there were several instances around the

execution of the 2009 Will, during which Shartsis broke off contact with Gary for reasons

that may have seemed petty to a neutral observer, such as disputes over tipping and the

amount of ice to put in a soda, but were apparently very important to Shartsis. Those

conflicts between Gary and Shartsis could have formed the basis for Shartsis's belief that

Gary did not like or love him. As to Linda, although there is no evidence of the level of

conflict between Linda and Shartsis as between Gary and Shartsis, it is apparent from

Linda's testimony regarding Shartsis's personality and behavior and that she considered

him to be an eccentric and self-centered person who was difficult to get along with.

Although Linda testified that she loved her father despite his eccentricities, Shartsis could

have perceived Linda's opinion of him and could have concluded, perhaps incorrectly,

that Linda did not actually value having a relationship with him. Indeed, the evidence

shows that for many years Shartsis chose to distance himself from Linda and not develop

a close relationship. For example, he did not attend her wedding, did not visit her when

he was in Lake Tahoe, and in later years did not keep her informed about his

hospitalizations and surgeries.

In sum, because Shartsis's beliefs about the quality of his relationship with his

children could have had some basis in fact, even if Shartsis may have reached illogical

conclusions from those facts, the evidence in the record does not provide substantial

28
support for the trial court's finding that Shartsis suffered from a delusion about his

relationship with his children within the meaning of section 6100.5.

c. Linda's Testimony that Shartsis Told Her That Gary Stole from Him
Does Not Provide Sufficient Evidence to Support the Trial Court's
Finding That Shartsis Suffered from a Delusion When Executing the
2009 Will

Before concluding our review of the sufficiency of the evidence to support the trial

court's finding that Shartsis lacked capacity to execute the 2009 Will, we focus on one

additional item of evidence discussed by the parties and mentioned by the trial court.

During the trial court's lengthy remarks summarizing the evidence, the trial court

referred to Linda's testimony in response to counsel's question whether, in "the last two or

three years" of Shartsis's life, he ever mentioned the term " 'dementia' " to her. According

to Linda, during a telephone call on an unspecified date, the following conversation

occurred between her and Shartsis: "He described a situation that was nonsensical to me,

and he had mentioned something about my brother stealing something from him. And I

said, Dad, you need to rethink this. I said, Gary would never steal from you. And he

said, Oh, he entered my home in a big, long, black coat, and it was in the middle of

summer. I said, Dad, Gary doesn't wear big, long, black coats. He said, He entered my

house and he stole money. I said, Dad, let's talk about this. Where was your money? He

said, it was on the bed. I said, Dad, you don't leave money on your bed. How much

money was there? He said, I think it was $4,500. I said, And when Gary left in his big,

black coat how much money was there? And he said, $3,000. And I said, Dad, what

29
you're saying doesn't make sense. Gary doesn't want your money, and Gary wouldn't do

this. Gary loves you. And he said, Well, I am getting dementia."

For several reasons, this testimony does not provide substantial evidence for the

trial court's finding that Shartsis was suffering from a delusion regarding his relationship

with his children within the meaning of section 6100.5 when he executed the 2009 Will.

First, Linda did not specify when the conversation occurred. Although Linda's

testimony was in response to a question directing her to the period during "the last two or

three years" of Shartsis's life, that time frame spans the dates of September 2008 to

September 2011. There is no basis to conclude that the conversation took place prior to

Shartsis's execution of the 2009 Will in April 2009. Linda and Gary "had the burden of

proving [Shartsis] was delusional at the time of executing the will." (Goodman, supra, 25

Cal.App.4th at p. 1678, italics added.) Because Gary and Linda failed to present

evidence that the telephone conversation occurred before the execution of the 2009 Will,

they have not met their burden to establish that Shartsis was suffering from a delusion

concerning Gary during the relevant time period.

Second, to qualify as a delusion a belief must be "adhered to against all evidence

and argument to the contrary" (Putnam, supra, 1 Cal.2d at p. 172), and " '[i]t must be a

delusion of such character that no evidence or argument will have the slightest effect to

remove.' " (Alegria, supra, 87 Cal.App.2d at p. 655.) Here, Linda's own testimony

established that Shartsis immediately responded in a positive manner to evidence and

argument that called into question his irrational belief. Rather than defending the

irrational belief, he responded by telling Linda that he was getting dementia.

30
 Finally, evidence that Shartsis believed that Gary stole from him is not sufficient

to support a finding that Shartsis's belief was a but-for cause of his decision to exclude

Linda and Gary from the 2009 Will, regardless of when Shartsis held that belief. The

2009 Will excluded both Gary and Linda as beneficiaries. However, Shartsis's belief that

Gary stole from him provides no basis for his decision to exclude Linda as well as Gary.

Under the circumstances, Shartsis's belief that Gary stole from him could not have been a

but-for cause of his decision to omit both Gary and Linda from the 2009 Will and

therefore does not, in itself, provide substantial evidence to support the trial court's

finding that Shartsis was suffering from a delusion regarding his children, without which

he would not have executed the 2009 Will.

D. Disposition of Ho's Appeal

For the reasons set forth above, we conclude that substantial evidence does not

support the trial court's finding that Shartsis was suffering from a delusion within the

meaning of 6100.5 at the time he executed the 2009 Will. Accordingly, we will reverse

the trial court's order granting Gary and Linda's Contest and denying Ho's Petition.

III.

GARY AND LINDA'S CROSS-APPEAL

Gary and Linda filed their Contest in November 2011 alleging lack of capacity,

undue influence and fraud. Ho filed a motion for summary judgment in March 2012 as to

all three causes of action. The trial court granted summary adjudication on the undue

influence and fraud causes of action.

31
 In their cross-appeal, Gary and Linda challenge the trial court's summary

adjudication on the undue influence and fraud causes of action, contending that (1) the

trial court's ruling was insufficient because it did not provide an adequate statement of

reasons, and (2) Ho did not meet his burden to establish that there were no triable issues

of fact.

A. The Trial Court Did Not Prejudicially Err in Setting Forth Its Statement of
Reasons

As a preliminary matter, we consider Gary and Linda's contention that the

summary adjudication ruling should be reversed because the trial court did not

sufficiently explain the reason for its decision.

At the hearing on the summary judgment motion on December 17, 2012, the trial

court announced its tentative ruling to grant summary adjudication as to the undue

influence and fraud causes of action. After hearing argument from the parties, the trial

court indicated that it would follow its tentative ruling: "I don't think as to the second

grounds there's enough evidence of direct influence, so I am going to sustain the

objection as to undue influence, which is the second cause of action, and issue three,

defraud." The trial court's subsequent written order granting summary adjudication

simply states as to both causes of action that "there is no triable issue as to any material

fact."

Code of Civil Procedure section 437c, subdivision (g) provides in relevant part:

"Upon the grant of a motion for summary judgment on the ground that there is no triable

issue of material fact, the court shall, by written or oral order, specify the reasons for its

32
determination. The order shall specifically refer to the evidence proffered in support of

and, if applicable, in opposition to the motion which indicates that no triable issue exists.

The court shall also state its reasons for any other determination. The court shall record

its determination by court reporter or written order."

Arguably, the trial court failed to fully comply with Code of Civil Procedure

section 437c, subdivision (g), as it set forth only a very cursory explanation for its ruling

which did not refer to any specific evidence and simply explained that there was not

"enough evidence of direct influence."

Despite the trial court's very brief explanation of the reasons for its ruling, we

conclude that the failure to fully comply with Code of Civil Procedure section 437c,

subdivision (g) does not require reversal. "The trial court's failure to perform this

statutory duty [set forth in Code of Civil Procedure section 437c, subdivision (g)], . . .

does not automatically require a reversal. . . . The de novo standard for appellate review

of an order granting summary judgment frequently means the lack of a proper order

constitutes harmless error." (Main Street Plaza v. Cartwright & Main, LLC (2011) 194

Cal.App.4th 1044, 1057, italics added, citation omitted (Main Street Plaza).) "[R]eversal

for a failure to state reasons is not required if the failure was harmless 'since " '[i]t is the

validity of the ruling which is reviewable and not the reasons therefore.' " ' . . . If

independent review establishes the validity of the judgment, then the error is

harmless. . . . An example of when a failure to state reasons would not be harmless is

when the trial court has discretion to ignore a party's declaration that conflicts with the

33
party's deposition testimony." (Byars v. SCME Mortgage Bankers, Inc. (2003) 109

Cal.App.4th 1134, 1146, citations omitted (Byars).)

Here, any deficiency in the trial court's statement of reasons was harmless error. It

is clear from the trial court's brief statement that in granting summary adjudication it

focused on the lack of evidence that Ho directly influenced Shartsis's execution of the

2009 Will. Our own independent review permits us to fully assess whether that decision

is supported by the evidence presented in connection with the summary judgment motion.

This is not a unique situation requiring reversal, such as where appellate review is

stymied because it is not clear whether the trial court has exercised its discretion to ignore

certain evidence (Byars, supra, 109 Cal.App.4th at p. 1146, citing Santa Barbara

Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 449), or where it

is not clear that the trial court even reached a ruling on a certain issue (Main Street Plaza,

supra, 194 Cal.App.4th at p. 1058). Therefore, we conclude that any error by the trial

court was harmless.

B. The Merits of the Summary Adjudication Ruling

We next consider Gary and Linda's contention that the trial court improperly

granted summary adjudication on the undue influence and fraud causes of action.

1. Standards Applicable to Motions for Summary Judgment and Summary
Adjudication

Code of Civil Procedure section 437c, subdivision (c) provides that summary

judgment or summary adjudication is to be granted when there is no triable issue of

material fact and the moving party is entitled to judgment as a matter of law. The moving

34
party "bears an initial burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850 (Aguilar).) A moving party may rely on "the pleadings,

competent declarations, binding judicial admissions contained in the allegations of the

plaintiff's complaint, responses or failures to respond to discovery, and the testimony of

witnesses at noticed depositions." (Eisenberg v. Alameda Newspapers, Inc. (1999) 74

Cal.App.4th 1359, 1375.) "A prima facie showing is one that is sufficient to support the

position of the party in question." (Aguilar, at p. 851.)

If the party's prima facie case is met, the burden shifts to the opposing party to

show the existence of a triable issue of material fact with respect to that cause of action or

defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65

Cal.App.4th 256, 261.) Ultimately, the moving party "bears the burden of persuasion that

there is no triable issue of material fact and that he is entitled to judgment as a matter of

law." (Aguilar, at p. 850.)

We review summary judgment and summary adjudication rulings de novo to

determine whether there is a triable issue as to any material fact and whether the moving

party is entitled to judgment as a matter of law. (Certain Underwriters at Lloyd's of

London v. Superior Court (2001) 24 Cal.4th 945, 972.) "In practical effect, we assume

the role of a trial court and apply the same rules and standards which govern a trial court's

determination of a motion for summary judgment." (Lenane v. Continental Maritime of

San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) "[W]e are not bound by the trial

court's stated reasons for its ruling on the motion; we review only the trial court's ruling

35
and not its rationale." (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388,

1402.)11

2. Relevant Evidence Presented in the Summary Judgment Proceeding

In support of his motion for summary judgment, Ho presented evidence relevant to

the undue influence and fraud causes of action in the form of declarations, documentary

evidence and deposition transcripts. The facts presented in connection with the summary

judgment motion are generally consistent with the facts presented at trial, which we have

set forth above. For the purposes of our review of the summary adjudication ruling, we

elaborate on the evidence that is central to the issues of undue influence and fraud, as

presented in connection with the summary judgment motion.

As we have explained, Shartsis and Ho became acquainted in 1982 when Ho

purchased Pacific BMW next to Shartsis's auto repair business on the Brand Property.

Ho began to lease a portion of the Brand Property in 1985. The lease was expanded in

1989 to include all of the Brand Property when Shartsis moved to Victorville. This

landlord-tenant relationship between Shartsis and Ho continued from 1985 through

Shartsis's death in 2011.

In 2002, Pacific BMW sought to construct a new building costing over $20 million

that would be partially located on the Brand Property. Ho offered to buy the Brand

11 We note that the parties filed evidentiary objections in connection with the motion
for summary judgment, but the record contains no indication that the trial court ruled on
the objections. When "the trial court fails to rule expressly on specific evidentiary
objections, it is presumed that the objections have been overruled." (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 534.)

36
Property from Shartsis, but Shartsis preferred to enter into a long-term lease. Pacific

BMW (through a limited liability company) therefore entered into a 99-year ground lease

with Shartsis in October 2002, under which Pacific BMW agreed to pay $7,500 per

month in rent, subject to Ho's personal guarantee. Ho also agreed to provide Shartsis

with a leased BMW as part of the consideration for the ground lease. In connection with

the ground lease, Shartsis executed a power of attorney appointing Ho or another

executive at Pacific BMW as his agent to carry out tasks related to the planned

construction on the Brand Property.

In 2006, Shartsis made an unsecured loan to Pacific BMW in the amount of

$850,000. Later, Shartsis increased the amount of the loan to $1 million. The loan from

Shartsis to Pacific BMW was renewed each year. Ho explained in his declaration and

deposition that the loans were Shartsis's idea.

Beginning in 1986 Shartsis executed a series of wills in which he left some of his

estate to Ho.

In the 1986 Will, Shartsis left one dollar to each of his three children and

35 percent of the residual estate to Ho, with the remainder of the estate going to Shartsis's

siblings and to a friend. Shartis did not discuss the 1986 Will with Ho before preparing

it, and he told Ho after the fact that he had added him as a beneficiary of his will.

In the 1996 Will, Shartsis left his personal property and 20 percent of his residual

estate to each of his three children and 40 percent of his residual estate to Ho. He also

designated Ho as executor. Ho was not involved in Shartsis's preparation of the 1996

Will and received a copy after the fact.

37
 In the 2001 Will, Shartsis left his personal property and 5 percent of his residual

estate to each of his three children, and the Brand Property and 85 percent of his residual

estate to Ho. Ho was once again designated as executor. Shartsis informed Ho that he

was amending his will and sent Ho a copy.

In 2002, when the parties were discussing entering into the ground lease in

connection with Pacific BMW's construction of its new building, it was decided that a

limited liability company would be created to own and lease the real estate at issue.

However, under the terms of the 2001 Will, Ho was to receive the Brand Property upon

Shartsis's death only if Ho "or a corporation in which he is a majority shareholder" was

leasing the Brand Property at the time of Shartsis's death. Because the new lease was to

involve a limited liability company, not a corporation, an executive at Pacific BMW

asked Shartsis to revise the 2001 Will to reflect the change in the form of entity.

Shartsis retained the same attorney who had prepared the 2001 Will to make the

revisions reflected in the 2002 Will.12 Apart from the revisions regarding the form of

entity that could be leasing the Brand Property at the time of Shartsis's death, the

dispositive provisions of the 2002 Will were identical to those in the 2001 Will. Counsel

for Pacific BMW participated in providing Shartsis's attorney with proposed form-of-

12 The 2002 Will provides that the Brand Property will go to Ho if "at the time of my
death . . . [Ho] or a corporation, limited liability company, partnership or other form of
entity in which [Ho] owns a majority interest, is then leasing said property from me, and
said property is in the possession of an entity in which [Ho] owns a majority interest."

38
entity language.13 Ho was not involved in the drafting or execution of the 2002 Will,

and he was not present when Shartsis executed the 2002 Will.

In January 2009, Shartsis wrote a letter to Ho stating that he intended to revise his

will again and asking Ho "to help with my will." Shartsis stated, "Here is my thinking.

That all 3 children be removed and set it up for 10% to Steve Lindstrom and 90% to you

. . . and that Gary get the personal property [at Shartsis's Victorville home], which

includes everything but the BMW," so long as "[Gary] maintain[s] the property . . . for

[one] year before you turn over the title." In the letter, Shartsis tried to get Ho to "share

the cost of adjusting the will as you know almost all that I have left will belong to you."

The letter stated, "I hope these changes will eliminate any problems that could be caused

by my children to you. As you know, you are my best friend [and] Steve does a lot to

help you for me." After sending the letter, Shartsis called Ho and told him that "he's

changing his will again," and that Ho "should wait for the one in the mail again." Ho did

not offer any assistance to Shartsis in preparing the new will.

In April 2009, Shartsis sent Ho a letter explaining that he was "making a new will"

and was sending Ho a copy before it was signed. In the letter, Shartsis asked Ho to

"check it out and make sure that it does not change the important parts that apply to you."

13 In connection with the summary judgment motion, the parties disputed whether
Pacific BMW paid for the revisions reflected in the 2002 Will. This disputed fact is not
material to the issue of whether Ho exercised undue influence over Shartsis in 2009.
Although not before the court during the summary judgment motion, we note that Ho
testified at trial that at Shartsis's request, he reimbursed Shartsis for $975 of the legal
expenses incurred in making the technical revisions reflected in the 2002 Will.

39
Shartsis explained that "[a]ll the children are excluded to make sure that you will not

have a problem handling the will. They are not honest and are my friends only for what

they can get when I die. Gary is also excluded from the will for reasons that he has done

to me personally." Shartsis explained to Ho that he was running out of time to execute

the will before an upcoming surgery, and he wanted Ho "to call [him] to approve it."

After sending the draft will, Shartsis called Ho to tell him that "he was going to go

sign the will" and to ask whether "I have any problem with it." Ho told Shartsis that he

did not have any problem with the new will, and Ho may have commented, "Now you

taking your kids out again?"

The draft will that Shartsis sent Ho in April 2009 was prepared by attorney

Schauf, whom Shartsis located through a local newspaper advertisement. On April 15,

2009, Shartsis met with Schauf and told her that he wanted to make some changes to his

will. Schauf interviewed Shartsis for about 30 to 45 minutes, including time to make sure

that he understood what he was doing and was competent to prepare a will.

At the meeting, Shartsis gave Schauf handwritten notes reflecting the proposed

changes, which specified, among other things, that he did not want to leave anything to

his children. Schauf testified in her deposition that she specifically reviewed with

Shartsis the fact that he did not want to give a gift to any of his children. Schauf was

satisfied that Shartsis knew what he was doing and that his desire was to give no gift to

his children. Further, based on her discussions with Shartsis, Schauf concluded that he

was making the will based on his own views and not based upon what anybody was

telling him to do.

40
 After their initial meeting, Schauf mailed Shartsis a draft of the revised will for his

review. Approximately two weeks later, on April 28, 2009, Shartsis returned to Schauf's

office and executed the 2009 Will. Shartsis then sent Ho a copy of the executed will.

Schauf had no contact or communication with Ho.

3. Applicable Law for Undue Influence Cause of Action

We next examine the applicable legal standards for establishing undue influence

sufficient to invalidate a will.

Probate Code section 6104 provides that the execution of a will is ineffective if

procured by undue influence.14 "Undue influence is pressure brought to bear directly on

the testamentary act, sufficient to overcome the testator's free will, amounting in effect to

coercion destroying the testator's free agency." (Rice v. Clark (2002) 28 Cal.4th 89, 96

(Rice).) "To overturn a will on the ground of undue influence, not only must there be

evidence of activity on the part of the beneficiary, it also 'is necessary to show that the

influence was such as, in effect, to destroy the testator's free agency and substitute for his

own another person's will. . . . Evidence must be produced that pressure was brought to

bear directly upon the testamentary act. . . . [M]ere opportunity to influence the mind of

14 In 2013, a definition of "undue influence" was added to the Probate Code, stating
that " '[u]ndue influence' has the same meaning as defined in Section 15610.70 of the
Welfare and Institutions Code" but that "[i]t is the intent of the Legislature that this
section supplement the common law meaning of undue influence without superseding or
interfering with the operation of that law." (Prob. Code, § 86.) Welfare and Institutions
Code section 15610.70 provides: "(a) '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." It also lists a number of factors that may be considered in
determining whether undue influence is present. (Ibid.)

41
the testator, even coupled with an interest or a motive to do so, is not sufficient.' " (Estate

of Lingenfelter (1952) 38 Cal.2d 571, 586, citations omitted (Lingenfelter).) " ' "Before a

testamentary document will be overthrown because of the exercise of undue influence,

the proven circumstances must be inconsistent with voluntary action on the part of the

testator." ' " (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182.) "[U]ndue

influence requires a showing that the testator's free will was overpowered ' " ' "at the very

time the will was made." ' " ' " (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1354

(Lintz).)

" '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.' " (Lintz, supra, 222 Cal.App.4th at p. 1355.) Accordingly, "undue

influence can be established by circumstantial evidence so long as the evidence raises

more than a mere suspicion that undue influence was used; the circumstances proven

must be inconsistent with the claim that the will was the spontaneous act of the testator."

(Estate of Franco (1975) 50 Cal.App.3d 374, 382 (Franco); see also Estate of Welch

(1954) 43 Cal.2d 173, 178 (Welch) ["It is not sufficient for a contestant merely to prove

circumstances consistent with the exercise of undue influence; but before the will can be

overthrown the circumstances must be inconsistent with voluntary action on the part of

the testator."].)

"The indicia of undue influence have been stated as follows: '(1) The provisions

of the will were unnatural[;] (2) the dispositions of the will were at variance with the

intentions of the decedent, expressed both before and after its execution; (3) the relations

42
existing between the chief beneficiaries and the decedent afforded to the former an

opportunity to control the testamentary act; (4) the decedent's mental and physical

condition was such as to permit a subversion of his freedom of will; and (5) the chief

beneficiaries under the will were active in procuring the instrument to be executed.' "

(Lingenfelter, supra, 38 Cal.2d at p. 585.)

In Lingenfelter, our Supreme Court concluded that even though the record

contained evidence of most of the other possible indicia of undue influence, because there

was no evidence of active procurement by the beneficiary, the evidence was not

sufficient to establish undue influence. (Lingenfelter, supra, 38 Cal.2d at p. 586 ["there

still is no proof of undue influence" because "[e]vidence of activity by [the beneficiary]

in procuring execution of the will is entirely lacking"].) As noted in Franco, supra, 50

Cal.App.3d 374, even if the other factors enumerated in Lingenfelter are shown, there

must still be "circumstantial evidence giving rise to the inference that the relationship

existing between the chief beneficiary and decedent offered the former the opportunity to

control the testamentary act and that the chief beneficiary was active in procuring the

instrument to be executed." (Franco, at pp. 385-386, italics added; see also Estate of

Robbins (1959) 172 Cal.App.2d 549, 555 (Robbins) [nonsuit was properly granted on

undue influence claim when there was evidence of "confidential relationship, motive,

opportunity and perhaps an unnatural quality of the will" but "there was a complete lack

of proof of procurement"]; Estate of Graves (1927) 202 Cal. 258, 262 ["mere proof of

opportunity to influence the mind of the testatrix, even though shown to be coupled with

interest, or a motive to do so, does not sustain a finding of undue influence, in the

43
absence of testimony showing that there was pressure operating directly on her

testamentary act"].)

Under limited factual circumstances, undue influence may also be established at

trial by use of a presumption. "[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. This will occur only if all of the following elements are

shown: (1) the existence of a confidential relationship between the party making the

donative transfer and the person alleged to have exerted undue influence; (2) active

participation by the latter in the actual preparation or execution of the donative

instrument; and (3) the receipt by that person of undue profit from the executed

instrument." (Conservatorship of Estate of Davidson (2003) 113 Cal.App.4th 1035,

1059-1060 (Davidson).)

4. Summary Adjudication Was Properly Granted on the Undue Influence
Cause of Action

a. The Circumstantial Evidence Does Not Create a Triable Issue of
Material Fact as to Undue Influence

Gary and Linda's first argument is that summary adjudication was improperly

granted on the undue influence cause of action because the circumstantial evidence is

sufficient to support a finding that Ho exercised undue influence over Shartsis in the

execution of the 2009 Will. We reject the argument.

As we have explained, at a minimum, the circumstantial evidence supporting a

finding of undue influence must support (1) an "inference that the relationship existing

44
between the chief beneficiary and decedent offered the former the opportunity to control

the testamentary act" and (2) "that the chief beneficiary was active in procuring the

instrument to be executed." (Franco, supra, 49 Cal.App.3d at pp. 385-386.)

Here, no circumstantial evidence in the record supports an inference either that Ho

had an opportunity to control Shartsis at the time of the 2009 Will or that Ho was active

in the procurement of the 2009 Will.

As for Ho's opportunity to control Shartsis's execution of the 2009 Will, the

undisputed evidence shows very limited involvement by Ho in the events leading up to

the execution of the 2009 Will. The evidence establishes nothing more than that Ho

received two letters from Shartsis within a few months of the execution of the 2009 Will

and had two telephone conversations with him, both of which were initiated by Shartsis.

There is no evidence that, in response to those letters, Ho made any substantive

comments to Shartsis to influence the proposed amendments to the will. These limited

interactions between Ho and Shartsis shown by the record come nowhere near to creating

an inference that Ho had an opportunity to bring "pressure . . . directly on the

testamentary act, sufficient to overcome the testator's free will." (Rice, supra, 28 Cal.4th

at p. 96.) "Mere general influence, however strong and controlling, not brought to bear

upon the testamentary act, is not enough; it must be influence used directly to procure the

will, must amount to coercion destroying free agency." (Robbins, supra, 172 Cal.App.2d

at p. 554.)

As to active procurement, "[t]here must be activity by the beneficiary in the actual

preparation of the will." (Estate of Mann (1986) 184 Cal.App.3d 593, 607.) The

45
undisputed evidence was that Shartsis initiated the idea of amending his will in 2009,

located Schauf himself, and met with Schauf on his own to draft and execute the 2009

Will, without Ho present. Based on those facts, there is no basis for a finding of active

procurement. (See, e.g., Lingenfelter, supra, 38 Cal.2d at p. 586 ["Active participation in

procuring the execution of the will cannot be inferred from the fact that [beneficiary]

accompanied [testatrix] to [attorney's] office, in the absence of any indication that

[testatrix] went there at [beneficiary's] instigation or request, or that [testatrix] was not

acting entirely in accord with her own desire."].) Here, "[t]here is absolutely no evidence

[Ho] in any way affected the dispositive contents of the will, and ' "[a] will cannot be

overturned on the mere speculation or suspicion that undue influence may have been used

to procure it." ' " (Mann, at pp. 608-609.)

Gary and Linda devote much of their briefing of the undue influence cause of

action to a discussion of events surrounding the execution of the 2002 Will. They argue

that Ho did participate in procuring the 2002 Will because he or his representative at

Pacific BMW asked Shartsis to make a technical change to that document to amend the

type of entity that could be leasing the Brand Property at the time of Shartsis's death.

However, evidence regarding the 2002 Will has no relevance here, as Gary and Linda

seek to invalidate the 2009 Will, not the 2002 Will. As we have explained, "undue

influence requires a showing that the testator's free will was overpowered ' " ' "at the very

time the will was made." ' " ' " (Lintz, supra, 222 Cal.App.4th at p. 1354.) For that

reason, evidence of what happened in 2002 does not inform our analysis as to whether

Gary and Linda have established Ho's undue influence in the execution of the 2009 Will.

46
Moreover, even if Ho's participation in the 2002 Will was somehow pertinent here, the

evidence in the record is not sufficient to support a finding that Ho's involvement in 2002

amounted to influence that "destroy[ed] the testator's free agency" (Lingenfelter, supra,

38 Cal.2d at p. 586) and thus does not establish that Ho ever exercised undue influence

over Shartsis as to any testamentary document. As of the time of the 2002 Will Shartsis

had already, without any involvement from Ho, made a bequest to Ho of the Brand

Property in the 2001 Will. The only reasonable interpretation of the evidence is that the

changes reflected in the 2002 Will were made to insure that Shartsis's pre-existing

testamentary intention would be carried out, and would not be inadvertently stymied by

Pacific BMW's change in the form of entity that would be leasing the Brand Property.

We accordingly reject Gary and Linda's contention that the circumstantial

evidence before the trial court in connection with the summary judgment motion was

sufficient to create a triable issue of fact as to whether Ho exercised undue influence over

Shartsis in the execution of the 2009 Will. There is no factual basis for a trier of fact to

conclude that the circumstances surrounding Ho's involvement with the 2009 Will were

"inconsistent with voluntary action on the part of [Shartsis]" in executing that document.

(Welch, supra, 43 Cal.2d at p. 178.)

b. The Evidence Does Not Create a Presumption of Undue Influence

Apart from contending that circumstantial evidence showed that Ho exercised

undue influence over Shartsis's execution of the 2009 Will, Gary and Linda also argue

that they presented evidence sufficient to create a presumption of undue influence.

47
 As we have explained, a party may establish a presumption of undue influence at

trial when three elements are present: "(1) the existence of a confidential relationship

between the party making the donative transfer and the person alleged to have exerted

undue influence; (2) active participation by the latter in the actual preparation or

execution of the donative instrument; and (3) the receipt by that person of undue profit

from the executed instrument." (Davidson, supra, 113 Cal.App.4th at pp. 1059-1060.)

Without even considering the other two of the three elements required to establish

a presumption of undue influence, we reject Gary and Linda's argument because the

element of active procurement is missing. As we have detailed above, the record

contains no evidence of any "active participation by [Ho] in the actual preparation or

execution of the [2009 Will]." (Davidson, supra, 113 Cal.App.4th at p. 1060.)

5. Applicable Law for Fraud Cause of Action

We next consider the legal principles applicable to the fraud cause of action.

Under Probate Code section 6104, a will is ineffective to the extent it is procured

by fraud. "In cases where fraud alone is relied upon as a ground of contest it is the theory

of the law that the testator, even though acting, in a manner of speaking, of his own free

will, was, nevertheless deceived by false data into doing that which he would not have

done had he not been fraudulently imposed upon." (Estate of Newhall (1923) 190 Cal.

709, 718.) "[F]alse representations . . . have been held to constitute fraud if it can be

shown that they were designed to and did deceive the testator into making a will different

in its terms from that which he would have made had he not been misled." (Ibid.) "The

elements of fraud in the procurement of a testamentary instrument are the same as those

48
required to vitiate a contract. 'One of the necessary elements is an intent to deceive the

decedent or an intent to induce decedent to execute his will.' " (David v. Hermann (2005)

129 Cal.App.4th 672, 685-686.)

6. Summary Adjudication Was Properly Granted on the Fraud Cause of
Action

With respect to the fraud cause of action, Ho's summary judgment motion argued

that Gary and Linda had not identified any false representation made by Ho that induced

Shartsis into entering into the 2009 Will. In their opposition briefing in the trial court and

again on appeal, Gary and Linda devote very little discussion to their fraud cause of

action and fail to point to any representation by Ho that could serve as the basis for that

cause of action.

Because Gary and Linda have not met their burden to present evidence of any

false representations by Ho that could have induced Shartsis to enter into the 2009 Will,

we conclude that summary adjudication was properly granted as to the fraud cause of

action.

49
 DISPOSITION

As to Ho's appeal, the trial court's order granting the Contest and denying the

Petition is reversed. As to Gary and Linda's cross-appeal, the trial court's order granting

summary adjudication as to the undue influence and fraud causes of action is affirmed.

Ho is to recover his costs on the appeal and cross-appeal.

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

BENKE, J.

50