Estate of Rubin CA2/1

Filed 10/28/20 Estate of Rubin CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Estate of FLORA RUBIN, B295525
Deceased.

HAYM GANISH, (Los Angeles County
Super. Ct. No. BP157706)
Petitioner and Appellant,

v.

LOUIS COOPER,

Contestant and Respondent.

LOUIS COOPER, (Los Angeles County
Super. Ct. No. BP159538)
Petitioner and Respondent,

v.

HAYM GANISH,

Objector and Appellant.
 APPEAL from orders of the Superior Court of Los Angeles
County, Brenda J. Penny, Judge. Affirmed.
Shaw Koepke & Satter and Jens B. Koepke for Contestant
and Appellant.
Paul Kujawsky for Petitioner and Respondent.
____________________________
Appellant Haym “Victor” Ganish appeals from the probate
court’s orders invalidating certain testamentary instruments
executed by Flora Rubin, who died in 2014 at the age of 102.
Ganish, 27 years Rubin’s junior, met her when she was in her
late eighties or early nineties. He eventually moved in with her
and they regarded each other as boyfriend and girlfriend. Rubin
had macular degeneration and was nearly or completely blind for
the last decade of her life.
In 1995, before meeting Ganish, Rubin executed a will and
trust distributing her estate to friends, a charity, and family
members, including respondent Louis Cooper, her nephew.1 By
2004 she had amended those documents twice to add additional
beneficiaries and adjust the distributions. In 2012, at the age of
100, she executed a new will and an amended and restated trust
granting nearly everything to Ganish and his children, and
expressly disinheriting Louis.
Louis contested the 2012 instruments, as well as an
unsigned instrument purportedly prepared in 2011, and
petitioned for probate of the 1995 will. The probate court found

1 Because Louis Cooper shares a last name with other
individuals mentioned in this opinion, we refer to him by his first
name. We intend no disrespect.

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that Ganish had procured the later instruments through undue
influence, and ruled in Louis’s favor.
On appeal, Ganish contends the probate court failed to
apply the correct standard of proof of clear and convincing
evidence, instead allowing Louis to prove undue influence by a
preponderance of the evidence. We reject this argument.
Although the probate court did not state what standard of proof it
applied, we must presume the probate court knows the law and
applies it correctly in the absence of evidence to the contrary.
Also, the record indicates the probate court was aware of the
correct standard of review given briefing it requested from the
parties on that issue, and the statement of decision reflects a
certainty consistent with the clear and convincing standard.
We further conclude that substantial evidence in the record
supports the finding of undue influence. Competent evidence
supports an inference that, over a period of years, Ganish drove a
wedge between Rubin and her extended family and isolated her
from trusted caregivers and advisors. At the same time, he
exerted control over her medical care and misled her to believe
her finances were in disarray, rendering her frightened, confused,
and wholly dependent on him. The probate court expressly found
this evidence credible, and rejected the testimony in support of
Ganish. We must defer to those determinations.
Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary of the facts to those necessary to
resolve this appeal. Consistent with the standard of review (see
post), we present the evidence “in the light most favorable to the
prevailing party below.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1011 (O.B.).) We therefore focus our summary on the

3
evidence supporting the judgment, and do not summarize
extensively the evidence presented by Ganish in support of his
case. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th 570,
582 (Schmidt) [on substantial evidence review, appellate court
disregards evidence contrary to the judgment].)
To the extent any of the evidence summarized here
arguably falls within the definition of hearsay, we include it in
the absence of an objection at trial. (People v. Panah (2005)
35 Cal.4th 395, 476 [“ ‘ “hearsay . . . , if received without objection
takes on the attributes of competent proof when considered upon
the question of sufficiency of the evidence to support a
finding” ’ ”].)
Rubin was born in 1912 and died in 2014 at the age of 102.
Her husband and adult son predeceased her decades earlier.
Rubin had macular degeneration and by approximately 2003 was
nearly or completely blind.
Ganish was born in 1939. According to Ganish, he and
Rubin met in 2001. At some point he began staying overnight in
her apartment, and eventually moved in with her. Rubin
sometimes would identify Ganish to people as her “boyfriend,”
and sometimes as her “caregiver.” Ganish also identified himself
alternatively as Rubin’s boyfriend or caregiver.

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1. Rubin’s testamentary instruments2

a. Original will and trust
On June 13, 1995, Rubin executed a will and trust. The
will disposed of certain jewelry and furs and named as executors
her brother Irving Cooper and nephew Louis.3 Upon her
death, the trust was to distribute $300,000 to her nephew
Earl Foreman, with smaller distributions to Irving, Louis, and
others, with the remainder establishing three named funds at a
specified charity. Irving and Louis were named as co-successor
trustees.
The trust also distributed to Louis “any promissory note
and/or deed of trust executed by Louis Cooper in favor of
[Rubin]. . . .” As detailed further post, Louis had borrowed
$30,000 from Rubin in 1987.
On May 4, 2000, Rubin executed a codicil to her will
changing the recipients of her jewelry to Irving, Louis, and
Foreman and giving her personal property to Louis and Foreman.
Rubin also amended the trust, adjusting the distribution
amounts, including increasing the gift to Foreman to $500,000,
and adding a number of family members as additional
beneficiaries. The amended trust again distributed to Louis his
promissory note.
On January 16, 2004, Rubin amended the trust again,
keeping the same beneficiaries but adjusting the distribution

2 We paraphrase the testamentary instruments for context
only, and our summary of their contents is not binding on any
future proceedings concerning these instruments.
3 As with Louis, we refer to Irving Cooper by his first
name.

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amounts. Rather than giving a specific gift to Foreman, the trust
now distributed 30 percent of the trust residue to him. The
amended trust again distributed to Louis his promissory note.

b. Unexecuted amended trusts
The record contains an unsigned document entitled “The
Second Amended and Restated Flora Rubin Trust.” (Some
capitalization omitted.) A later document signed by Rubin states
that the second amended and restated trust was dated October 4,
2011, but no executed copy appears in the record.
The purported second amended and restated trust
distributed Rubin’s personal property to Ganish, except for a fur
coat gifted to Foreman. It granted $400,000 to Foreman and
$400,000 to Ganish, with smaller gifts to three family members
and a different charity than that specified in the earlier trust
documents. The residue went to Ganish. The document listed
Ganish and Foreman as co-successor trustees. Louis and most
other beneficiaries of the original trust were omitted from the
document.
The purported second amended and restated trust referred
to an earlier “Amended and Restated Flora Rubin Trus[t] dated
August 10, 2010,” although that purported document does not
appear in the record, executed or unexecuted.

c. Third amended and restated trust
On September 13, 2012, when Rubin was 100 years old, she
executed “The Third Amended and Restated Flora Rubin Trust.”
(Some capitalization omitted.)
This trust granted Rubin’s fur coat to Foreman and the
remainder of her personal property to Ganish. Foreman’s specific
gift was reduced to $25,000, with small gifts to two other family

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members, and no distribution to charity. The remainder went to
Ganish, or to two of his children if he did not survive Rubin.
Ganish was appointed successor trustee, with his two children co-
successor trustees if Ganish did not survive.
The third amended and restated trust expressly “made no
provision herein for Louis Cooper. . . .”
On the same date, Rubin executed a new will bequeathing
her entire estate to her trust. She appointed Ganish executor,
with his two children as alternate executors, and expressly
excluded Louis from the will.
On October 23, 2012, Rubin amended the third amended
and restated trust to no longer grant her fur coat to Foreman,
and instead, distribute all personal property to Ganish.
In a letter dated June 16, 2014, Rubin’s attorney enclosed
for her review a “proposed Resignation of Trustee” document
under which Rubin would resign as trustee and Ganish would
become the new trustee in accordance with the third amended
and restated trust. The letter stated that Rubin and her attorney
previously had discussed the document. The record does not
reflect that Rubin signed the document.

2. Challenges to testamentary instruments
Following Rubin’s death, Ganish filed a petition for probate
of the September 13, 2012 will. Louis filed a contest to that will,
and a petition for probate of the June 13, 1995 will and May 4,
2000 codicil. Louis also filed a petition to invalidate the second
and third amended and restated trusts and the amendment to
the third amended and restated trust. Louis contended that
Rubin lacked testamentary capacity and that the challenged
instruments were the product of undue influence.
The probate court tried the petitions and contest together.

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3. Witness testimony
We summarize below the testimony of certain witnesses at
trial.

a. Barbara Cooper4 and Sharleen Blair
Barbara Cooper is Rubin’s niece.5 She visited Rubin
frequently at Rubin’s apartment, apart from a four-year period
beginning approximately 2009 in which Barbara’s son was ill
with cancer. During the period when Barbara did not visit, she
continued to contact Rubin by phone. Barbara said it became
more difficult to speak with Rubin on the phone when Ganish
was there.
Rubin told Barbara that Ganish did not believe in
American medicine and that Rubin was not taking as much
medication anymore. Barbara heard Ganish say on several
occasions that “ ‘American medicine is poison,’ ” including in front
of Rubin.
Although Rubin was hospitalized numerous times during
her relationship with Ganish, Ganish never contacted Barbara to
let her know.
In 2013, after Barbara’s son died, she went to see Rubin
after being unable to reach Rubin by phone for months—Ganish

4 As with Louis, we refer to Barbara Cooper by her first
name.
5
Rubin added Barbara as a beneficiary to her trust in the
May 4, 2000 amendment, initially granting Barbara 10 percent of
the trust residue after payment of specific gifts. Rubin changed
the distribution to seven percent of the trust estate in the 2004
amendment. Barbara remained a beneficiary in the third
amended and restated trust with a specific gift of $10,000.

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would tell Barbara that Rubin would call her back, but she never
did. Barbara’s friend, Sharleen Blair, went with her. Barbara
described Ganish “dragging [Rubin] out from her bedroom”
“totally in a stupor.” Ganish sat Rubin on the couch next to
Barbara. Rubin dropped her head onto Barbara’s shoulder and
drooled. Barbara described her as “out.”
Blair similarly testified that during the visit to Rubin,
Ganish “all but carried [Rubin] out,” at which point Rubin
mumbled, then fell asleep and drooled on Barbara’s shoulder.
Blair further testified that during an earlier visit to Rubin’s
apartment, Blair saw what appeared to be brand new and sealed
containers of medication. Rubin told Blair that Ganish had told
her not to take them because they were not good for her, and to
take only what Ganish gave her.
Barbara contacted adult protective services about Ganish,
but no action was taken on the complaint.

b. Cheryl Williams
Williams is Louis’s girlfriend. From 2001 to 2008, she saw
Rubin at least once a month, sometimes at Rubin’s home and
sometimes at Louis’s home. Williams sometimes would read
documents such as bank statements to Rubin.
In 2009, Louis was trying to call Rubin as he often did, but
had not heard from her in five or six days. Louis and Williams
went to Rubin’s apartment to check on her and Ganish answered
the door. Ganish was “hostile” and stood in the doorway. Louis
and Williams slid past him.
Rubin was inside. Louis and Williams asked Rubin why
they had not heard from her. Ganish spoke to Rubin, telling her,
“ ‘These people are not your family. These people are not your
real family.’ ” He continued: “ ‘These people don’t love you. I am

9
the only one that loves you, that cares for you.’ ” Louis reminded
Ganish that Louis was the executor of Rubin’s estate. Ganish
said, “ ‘Not anymore you’re not.’ ”
Ganish resumed speaking to Rubin, stating that he was the
only one who came to see her at the hospital, and that no one
loved her but he. Williams responded that Ganish was the only
one at the hospital because he had not informed any of the family
that Rubin was hospitalized. Williams accused Ganish of not
telling anyone to “ ‘ma[k]e yourself look like a hero” to Rubin.
Ganish continued to repeat that Louis and Williams were
not Rubin’s family, and that only he loved her. Rubin appeared
“dazed.” Williams told Rubin that they were there because they
were worried about her, and reminded her that Louis had always
visited, and taken her out to lunch or shopping, and had
arranged with the landlord to repair the windows in Rubin’s
apartment. Williams said, “ ‘You know that Lou is your family,
you know that, Flora,’ ” and Rubin said, “ ‘Yes, that’s true.’ ”
At this, Ganish “got furious” and said to Rubin, “ ‘You
choose between him or me. And I’m going to pack my bags and
I’m leaving.’ ” Ganish left the room. Rubin said, “ ‘Victor. Victor.
Don’t get angry. Don’t get mad,’ ” and began feeling her way
down the hallway after him. Rubin was “in tears” and “upset.”
Williams, concerned that Rubin was going to have a heart attack
or otherwise get sick, urged Louis to leave. Louis did not want to
leave, but relented, and they departed.
Williams said it took her “months to get over what I saw,”
and she could not bear to visit Rubin again with Ganish there.
She did not see Rubin again before Rubin’s death.

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 c. Louis Cooper
Prior to 2009, Louis would see Rubin multiple times a
month, and would call her at least three times a week. He would
take her to the doctor, out for coffee, or shopping. He also took
her to family parties and to dances for senior citizens. Around
2004, while Rubin was in the hospital for surgery, Louis arranged
to have her apartment repainted and repaired.
In 1987, Louis borrowed $30,000 from Rubin, and executed
a note securing the loan. He paid monthly interest of $275 on the
loan until 2009, but never repaid the principal. In 2009, he asked
Rubin to forgive the loan, and he contends she did.6
Louis corroborated Williams’s account of the 2009 incident
at Rubin’s apartment in which Ganish told Rubin that Louis
did not care about her or love her. According to Louis, Ganish
told Rubin to “ ‘get [Louis and Williams] out of here or I’m leaving
you.’ ”
Louis contacted the police and the district attorney out of
concern for Rubin and her relationship with Ganish, but nothing
came of it. He also asked his sisters to contact adult protective
services.
After the confrontation in Rubin’s apartment, Louis did not
speak with or see Rubin again before she died.

6 Louis claimed Rubin arranged for an attorney to draft a
document forgiving the loan. The document was introduced at
trial. The probate court found “there is contradictory evidence in
the record about the significance of the document.” We do not
rely on the document in resolving this appeal.

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 d. Marlene Waliany
Marlene Waliany worked as Rubin’s caregiver beginning in
2008. She shopped, cleaned, took Rubin to the doctor, made
appointments for her, and picked up her medications. Waliany
said it was “[l]ike [Rubin] was like my mom.” Waliany also would
take Rubin to Chase Bank once a week, where Rubin would
discuss her finances with a bank employee.
Waliany knew Rubin’s extended family. Barbara and Louis
would visit, with Louis visiting more often. Rubin enjoyed their
visits and was also happy to talk to family members by phone.
Rubin told Waliany that Ganish said nobody cared for her
except him. Waliany said that she loved Rubin, and Rubin’s
family loved her too, but Rubin did not listen to her. Waliany
heard Ganish say that medicine did not help Rubin, and that the
only thing that would help her was fish oil.
At some point, Ganish informed Waliany he did not want
her to work for Rubin any more. Waliany called Rubin to tell her,
and said that Ganish only wanted Rubin’s money. Ganish got on
the phone and screamed at Waliany that she was fired.
Ganish nevertheless allowed Waliany to return. After a
few months, he decided to care for Rubin himself, at which point
“he d[idn’t] want [Waliany] to be there [any]more,” and her
employment ended in January 2012.

e. Earl Foreman7
Foreman is Rubin’s nephew, and lives in Chicago. He
routinely spoke to Rubin by phone one or more times a week, and

7 Foreman did not appear at trial. Counsel read portions
of Foreman’s deposition testimony into the record.

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estimated he spoke to her at least 50 or 60 times in the last year
of her life. Starting around 2011, Ganish would answer the
phone for Rubin on weekends, and by 2012, Ganish would always
answer the phone. Ganish usually would not put Rubin on the
phone, but would say she was sleeping or in the bathroom.
Sometimes Foreman would lose his temper and Ganish would put
Rubin on the phone. Foreman said Rubin was always happy to
talk to him.
Eric Yudis was Rubin’s investment counselor and
representative at Chase Bank. In 2010, during a meeting at
Chase, Rubin put Yudis on the phone with Foreman. Yudis
suggested that Foreman start receiving Rubin’s financial
statements so Foreman could explain them to her. For the next
several years, Foreman received Rubin’s stock and bond
statements on a monthly basis and would discuss them with
Rubin on the phone.
On one call, Ganish answered and Foreman heard Rubin
screaming in the background, “ ‘What am I going to do now? Oh,
my God. I’m totally broke. I have no money left. What happened
to me? What am I going [to] do? How am I going to pay my bills?
What’s going on?’ ” Foreman asked to speak with Rubin, and
Ganish said, “ ‘You don’t have to talk to her.’ ” Foreman insisted
and Ganish put Rubin, still screaming, on the phone.
Foreman told Rubin he had just received her bond
statement, and she still had $967,000 in bonds. He reminded her
she had been sending him her statements for two years, and he
was not sure why she was having a tantrum. Rubin said, “ ‘That
man’s got me all confused. I don’t remember [any]thing.’ ” The
record does not specify to whom Rubin was referring.

13
 Ganish then got on the phone and asked why Foreman was
receiving Rubin’s bank statements. Ganish told Foreman to send
the statements to him, because he was in charge of the estate and
all the bonds. Foreman refused, and told Ganish to stop scaring
Rubin. After that conversation, Foreman no longer received
Rubin’s statements. When he told Rubin this, she told him not to
worry about it.
On other occasions, Rubin told Foreman that Ganish had
fired various caregivers because they were stealing food and
charging too much. She also said that Ganish had stopped her
from taking her medication because he thought it was harming
her. Ganish told Foreman he believed Rubin’s doctors were
poisoning her, and that her health had improved because she had
stopped taking medication. Ganish did not inform Foreman of
Rubin’s various hospitalizations.

f. Victor Ganish
Ganish testified that he and Rubin “were like husband and
wife,” and he “gave her a promise ring” to indicate he “would
never leave for the rest of [his] life.”
Ganish acknowledged firing at least one caregiver,
although he said Waliany quit. By 2013 Rubin no longer had
caregivers other than Ganish. Ganish acknowledged that Rubin
loved Waliany, and Waliany loved her.
Ganish said he was not Rubin’s financial advisor and
was not interested in her financial affairs. He would help when
she asked, however, and by 2010 was helping with her finances.
Louis’s counsel played a recording of a call with
Transamerica, where Rubin had investments. At one point
Rubin put Ganish on the phone and he explained to the
Transamerica representative that Rubin had “lost all her money”

14
and had nothing left besides the funds in Transamerica. When
Louis’s counsel inquired about this assertion, Ganish first
claimed he meant only that if Rubin did not obtain money from
Transamerica to close escrow on a house, she would lose a
$21,000 deposit. Pressed further, Ganish explained at length
about money Rubin purportedly had lost, listing amounts and
financial institutions.
Ganish accompanied Rubin monthly to see Yudis, her
representative at Chase Bank. Ganish did not think Yudis was
honest. Additional recordings of telephone calls with
Transamerica indicated that Ganish assisted Rubin in removing
Yudis as the agent of record for her account with Transamerica.
During one call, Rubin told the Transamerica representative that
Yudis had forged Rubin’s signature to put himself on her account,
and she planned to sue him.
Asked why Rubin stopped working with Yudis, Ganish
stated that Yudis had been “cut” from Chase Bank and placed
under house arrest. Ganish said Yudis told him this, then
changed his testimony and said he did not know where Yudis
was, and the other Chase employees just told him Yudis was not
there anymore. Yudis later contacted Rubin and asked her to
transfer her accounts to his new bank, U.S. Bank. Ganish told
her not to do so because Yudis was a crook. Rubin transferred
her accounts anyway, but ceased working with Yudis a few
months later. Ganish said this was because she had not received
any monthly income after transferring her account.
Regarding Rubin’s extended family, Ganish first testified
that he did not remember arguing with Louis at Rubin’s
apartment. During a later day of testimony, however, Ganish
presented his version of the 2009 incident described by Louis and

15
Williams. Ganish testified that Louis was the aggressor, and
Rubin had told Louis to leave.
Ganish confirmed that Foreman called Rubin at least
weekly.
In 2011, Rubin was hospitalized after falling down. Ganish
did not inform any of her relatives. After Rubin had been in the
hospital three days, Ganish, against the doctors’ advice, took her
home without going through normal discharge procedures.
Ganish said Rubin was turning blue, and he believed the
treatment they were giving her was “killing her.” Ganish locked
the door to Rubin’s hospital room so the nurses could not come in,
and removed her IV and catheter himself.

g. Richard Skolnick
Skolnick was Rubin’s attorney. Except for the 2004 trust
amendment, he drafted all the testamentary instruments at issue
in this case, including the 1995 trust and the 2012 third amended
and restated trust.
Skolnick testified that Ganish was present when he
discussed estate matters with Rubin, but it was Rubin, not
Ganish, who instructed that she wanted the balance of her estate
to go to Ganish in the third amended and restated trust. Ganish
never told him what to put in the estate documents.
Skolnick stated that Rubin had told him she was mad at
Louis for not paying back money he owed. Skolnick did not recall
when Rubin told him this.
Skolnick prepared the proposed document, sent to Flora in
2014, through which Rubin would resign as trustee of her trust
and Ganish would take over. Skolnick said the goal of the
document was to allow Ganish to “deal more effectively with the
various accounts of Flora Rubin.” Skolnick initially testified that

16
Rubin had asked him to prepare the document. After Louis’s
counsel read portions of Skolnick’s deposition back to him,
Skolnick revised his testimony and stated it was Ganish who had
called him. Skolnick further testified it was Skolnick’s idea to
substitute Ganish as trustee, not Ganish’s.
Skolnick also testified that Rubin and Ganish had a very
close relationship, and that Ganish was a companion who drove
her around, took her to doctors, and helped her with her finances.
He stated that he observed this, but later acknowledged that he
never actually saw Ganish drive Rubin around or take her to
appointments.
Asked about Ganish’s children, who were included in the
later testamentary documents, Skolnick said, “I got the
impression that [Rubin] knew and met them. I don’t remember
exactly what she said.” It was his understanding that she met
them and had a relationship with them. In later testimony, he
explained that Rubin told him she stayed with Ganish at his
home in Orange County once, “and I believe she met [Ganish’s
children] at that time.”
Skolnick stated that Ganish at some point told him there
were missing bank accounts or financial assets. “There were
many, many, many conversations about that subject.” Skolnick
did not remember the specifics, such as which accounts were
purportedly missing, or when Ganish and Rubin discussed this
subject with him. Skolnick would tell them “to contact the bank
again and say a few things. I don’t remember exactly what I said
but it wasn’t very helpful.”

4. Probate court’s ruling
Before issuing a final ruling, the probate court requested
supplemental briefing on, inter alia, the burden and standard of

17
proof. Louis submitted a brief stating that “[u]ndue influence
must be proven by clear and convincing evidence.” Ganish stated
the same in his written closing argument, filed before the probate
court requested supplemental briefing.
The probate court issued its final ruling in a written
statement of decision. The court listed the statutory factors for
undue influence under Welfare and Institutions Code section
15610.70, and stated, “For a finding of undue influence to be
made by the Court, Louis has the burden to establish undue
influence and, if established, the burden shifts to [Ganish] to
show that he did not unduly influence [Rubin]. [Ganish] must
prove by a preponderance of the evidence that such did not
occur.”
The probate court concluded that the evidence established
Ganish had unduly influenced Rubin. The court stated,
“Testimony from multiple witnesses was consistent that, after
only a short time of Flora Rubin’s family becoming aware of
[Ganish], [Ganish] moved in with [Rubin], began isolating her
from her extensive family, and eventually began firing her care-
givers/care providers—making himself the only person she had
to rely on.” The court noted evidence that Ganish “even
controlled . . . [Rubin’s] medicinal regimen” and had “removed
[Rubin] from the hospital against doctor’s orders.” The court
continued, “Evidence at trial showed that [Rubin], after knowing
[Ganish] for only a short time, and after decades of planning to
leave her Estate amongst her large family and charities,
suddenly began executing a succession of new Testamentary
Documents, each benefitting [Ganish] more and more until
virtually all of [Rubin’s] Estate was left to [Ganish].”

18
 The probate court summarized and expressly found
credible the testimony of Waliany, Barbara, Blair, Louis,
Williams, and Foreman. It expressly found Ganish’s testimony
not “credible or forthright,” and belied by other evidence such as
the recordings of the calls with Transamerica. It further found
that attorney Skolnick “had minimal personal knowledge about
[Rubin’s] family or her private life,” and “[h]is testimony was
contradictory” and in some cases revised on further examination.
The probate court rejected the notion of a “rift between
[Rubin] and her family” or that Rubin was angry at Louis
because of his unpaid loan. The court found that, “until [Ganish]
isolated [Rubin], there was a continuous and warm relationship
between Louis and [Rubin], during the entirety of their lives,
including after the loan.” The court noted evidence “that
[Ganish] actively poisoned the relationship between [Rubin] and
her family.”
The probate court expressly “ma[de] no findings as to lack
of [testamentary] capacity.”
The probate court ruled invalid the September 13, 2012
Third Amended and Restated Flora Rubin Trust and
accompanying will, and the October 23, 2012 amendment to that
trust. The probate court further ruled invalid the Second
Amended and Restated Flora Rubin Trust, purportedly dated
October 4, 2011. The probate court granted Louis’s petition to
admit the June 13, 1995 will to probate, and appointed Louis as
personal representative.
Ganish timely appealed.

STANDARD OF REVIEW
“ ‘In reviewing a judgment based upon a statement of
decision following a bench trial, we review questions of law

19
de novo,’ ” and “ ‘apply a substantial evidence standard of review
to the trial court’s findings of fact.’ ” (Ribakoff v. City of Long
Beach (2018) 27 Cal.App.5th 150, 162.) “When reviewing a
finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a
reasonable fact finder could have found it highly probable that
the fact was true. In conducting its review, the court must view
the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (O.B., supra, 9 Cal.5th at pp. 1011–1012.) In
deferring to the trier of fact’s determinations as to the credibility
and weight of the evidence, we disregard evidence contrary to the
judgment. (Schmidt, supra, 44 Cal.App.5th at p. 582.)

DISCUSSION

A. Governing law
A person may contest the validity of a testamentary
instrument on the basis that it was a product of undue influence.
(See Rice v. Clark (2002) 28 Cal.4th 89, 96 (Rice).) Under the
common law, “[u]ndue 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.” (Ibid.)
The Legislature has provided a statutory definition of
undue influence in the Welfare and Institutions Code:
“[E]xcessive persuasion that causes another person to act or
refrain from acting by overcoming that person’s free will and

20
results in inequity.” (Welf. & Inst. Code, § 15610.70, subd. (a).)8
This statutory definition applies under the Probate Code as well,
where it is intended to “supplement the common law meaning of
undue influence without superseding or interfering with the
operation of that law.” (Prob. Code, § 86.)
The party contesting a testamentary instrument bears the
burden of proving undue influence by clear and convincing
evidence. (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th
529, 545.)9 A party may prove undue influence based on
circumstantial evidence, and need not show “direct evidence of
undue influence at the moment [a] decedent signed the trust
instruments.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355
(Lintz).)

B. Ganish fails to show the probate court misapplied
the standard of proof
Ganish contends the probate court failed to apply the
heightened standard of proof of clear and convincing evidence,
instead deciding the case under the standard of preponderance of
evidence. Ganish’s argument appears to be premised on the fact

8 Unspecified statutory citations are to the Welfare and
Institutions Code.
9 Circumstances may give rise to a presumption of undue
influence, for example upon a showing that the beneficiary had a
confidential relationship with the testator, actively participated
in the procuring of the testamentary instrument, and unduly
benefitted under the instrument. (Rice, supra, 28 Cal.4th at
pp. 96–97.) The probate court did not rely on a presumption to
resolve the instant case, as Ganish acknowledges, and thus the
burden was on Louis to prove undue influence by clear and
convincing evidence.

21
that the probate court never expressly stated it was applying the
heightened standard. We reject this argument.
It is true that the probate court never expressly stated
what standard of proof applied to Louis’s showing of undue
influence. Rather, it stated, “For a finding of undue influence to
be made by the Court, Louis has the burden to establish undue
influence and, if established, the burden shifts to [Ganish] to
show that he did not unduly influence [Rubin]. [Ganish] must
prove by a preponderance of the evidence that such did not
occur.”
Ganish fails to identify any authority that it is reversible
error for a probate court not to state expressly the standard of
proof in its written decision. “We presume the trial court knew
and properly applied the law absent evidence to the contrary.”
(McDermott Will & Emery LLP v. Superior Court (2017)
10 Cal.App.5th 1083, 1103.) That presumption is particularly
appropriate here, where the probate court specifically requested
briefing on the standard of proof, and both parties agreed the
proper standard was clear and convincing evidence. There is no
reason to believe the probate court misapplied the standard of
proof merely because it did not state the standard in its written
decision.
Nor can we conclude that, in stating that Ganish’s standard
of proof was preponderance of the evidence, the probate court
applied that standard to Louis as well. Indeed, the fact that the
probate court specifically and separately noted Ganish’s standard
of proof suggests that it was not applying that standard to Louis.
Further reinforcing our conclusion is the statement of
decision itself, which makes clear the probate court found the
evidence overwhelmingly favored Louis. The probate court

22
devoted approximately four single-spaced pages to summarizing
the evidence upon which it relied, stating repeatedly how credible
it found Louis’s witnesses and how not credible it found Ganish’s
testimony. The decision leaves little doubt that the probate court
was thoroughly convinced that Ganish unduly influenced Rubin.
Ganish’s cited authorities are inapposite. Estate of Trikha
(2013) 219 Cal.App.4th 791 reversed a probate court’s ruling that
the appellant had failed to rebut a statutory presumption that his
father had revoked his will by destroying it. (Id. at pp. 793–794.)
In concluding the appellant had failed to rebut the presumption,
the probate court stated expressly in its written decision that it
“ ‘weighed the evidence and credibility of the witnesses.’ ” (Id.
at p. 807.) The Court of Appeal held this was error, because the
law required that the appellant only provide substantial evidence
to rebut the presumption, and “ ‘[t]he substantial evidence test
does not ask what proposed facts are more likely than not to be
the true facts.’ ” (Ibid.) Thus, the probate court incorrectly
“evaluated whether [the appellant’s] evidence persuaded it that
[the father] did not destroy his will, rather than focusing on
whether his evidence constituted substantial evidence negating
the revocation presumption.” (Ibid.)
Estate of Trikha, which involved a legal error apparent on
the face of the probate court’s written decision, has no application
here, where the written decision gives no indication of any legal
error.
In Lintz, supra, 222 Cal.App.4th 1346, the appellate court
concluded the probate court erroneously failed to apply a
presumption of undue influence based on the parties’ relationship
as spouses, because there was “no indication in the record . . .
that the probate court applied the presumption.” (Id. at p. 1353.)

23
In the instant case, in contrast, the probate court’s statement of
decision gives us no reason to think it applied the wrong
standard.
Estate of Truckenmiller (1979) 97 Cal.App.3d 326 stated
that undue influence must be proven by clear and convincing
evidence, and “[u]ndue influence will not be inferred from ‘slight
evidence.’ ” (Id. at p. 334.) Again, the statement of decision in
the instant case provides extensive explanation of the probate
court’s ruling, including the evidence upon which it relied. The
probate court did not infer undue influence from “ ‘slight
evidence.’ ”

C. There is substantial evidence of undue influence
Ganish claims there was insufficient evidence to support a
finding of undue influence. We disagree.
The Welfare and Institutions Code provides a list of factors
that “shall be considered” “[i]n determining whether a result was
produced by undue influence.” (§ 15610.70, subd. (a).) These
factors are incorporated into the Probate Code. (Prob. Code,
§ 86.)
First, “The vulnerability of the victim. Evidence of
vulnerability may include, but is not limited to, incapacity,
illness, disability, injury, age, education, impaired cognitive
function, emotional distress, isolation, or dependency, and
whether the influencer knew or should have known of the alleged
victim’s vulnerability.” (§ 15610.70, subd. (a)(1).)
Second, “The influencer’s apparent authority. Evidence of
apparent authority may include, but is not limited to, status as a
fiduciary, family member, care provider, health care professional,
legal professional, spiritual adviser, expert, or other
qualification.” (§ 15610.70, subd. (a)(2).)

24
 Third, “The actions or tactics used by the influencer.
Evidence of actions or tactics used may include, but is not limited
to, all of the following: [¶] (A) Controlling necessaries of life,
medication, the victim’s interactions with others, access to
information, or sleep. [¶] (B) Use of affection, intimidation, or
coercion. [¶] (C) Initiation 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.” (§ 15610.70, subd. (a)(3).)
Finally, “The equity of the result. Evidence of the equity of
the result may include, but is not limited to, the economic
consequences to the victim, any divergence from the victim’s prior
intent or course of conduct or dealing, the relationship of the
value conveyed to the value of any services or consideration
received, or the appropriateness of the change in light of the
length and nature of the relationship.” (§ 15610.70, subd. (a)(4).)
“Evidence of an inequitable result, without more, is not sufficient
to prove undue influence.” (Id., subd. (b).)
Based on these factors, we conclude the record “contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that” Rubin’s later testamentary
instruments were the product of undue influence. (O.B., supra,
9 Cal.5th at p. 1011.) We discuss each factor in turn.

1. Vulnerability of the victim
At the time Rubin executed the challenged testamentary
documents, she met many of the indicia of vulnerability under
section 15610.70, subdivision (a)(1). She was elderly—100 years
when she executed the third amended and restated trust—and
disabled, being completely blind.

25
 Rubin also suffered from illness, having been hospitalized
multiple times in the preceding years, and was dependent on
caregivers and others for her needs. Barbara and Blair testified
that during a visit with her she was incoherent and Ganish had
to carry her from the bedroom.
Ganish argues evidence in the record indicates that Rubin
was “independent, stubborn and strong-willed,” and there was no
indication of “diminished mental capacity.” Assuming arguendo
Ganish accurately characterizes this evidence, the probate court
found it either not credible or outweighed by evidence supporting
a finding that Rubin was vulnerable. Under the applicable
standard of review, we must defer to that finding. (Schmidt,
supra, 44 Cal.App.5th at pp. 581–582 [on substantial evidence
review, appellate court defers to trial court’s credibility findings
and does not reweigh evidence].)

2. Influencer’s apparent authority
Section 15610.70, subdivision (a)(2), lists as examples of
those with “apparent authority” both a “care provider” and a
“family member.” Rubin and Ganish referred to Ganish as her
“caregiver,” and by Ganish’s own admission in the last few years
of Rubin’s life he was her sole caregiver, the other caregivers
having left or been fired. Although Ganish argues he was not a
family member, his testimony that they were “like husband and
wife” belies this claim. Ganish concedes that he “had an
opportunity to control her testamentary actions.”

3. Influencer’s actions or tactics
Ganish’s “actions or tactics” in regard to Rubin provided
substantial evidence of undue influence. (§ 15610.70,
subd. (a)(3).)

26
 i. Control
There was substantial evidence that Ganish was
“[c]ontrolling [Rubin’s] necessaries of life, medication, [her]
interactions with others, [and] access to information.”
(§ 15610.70, subd. (a)(3)(A).) The evidence showed that Ganish
gradually eliminated from Rubin’s life those she had previously
relied on for affection or assistance, thus making her ever more
dependent on him. Multiple family members testified that
Ganish made it difficult for them to contact Rubin, and that he
never informed them when she was in the hospital, thus leading
her to believe Ganish cared for her more than her family.
Williams and Louis testified that Ganish threatened to leave
Rubin if she did not choose him over her family members.
Ganish objected to Foreman helping Rubin with her finances and
claimed that Ganish was in charge of Rubin’s estate and bonds,
after which Rubin no longer sent her financial statements to
Foreman. Ganish also got rid of Rubin’s caregivers, although he
testified that Rubin loved her caregiver Waliany, and Waliany
loved Rubin. Ganish pressured Rubin to end her relationship
with her financial advisor Yudis, calling him a “crook.”
The evidence also showed Ganish was controlling Rubin’s
medical care. Multiple witnesses testified that Ganish
discouraged Rubin from taking prescribed medication, and
instead directed her to use supplements provided by him. By his
own admission, he took her from the hospital against doctor’s
orders. In doing so, he locked the door to prevent medical
personnel from interfering as he personally removed her IV and
catheter.
The probate court could infer from the evidence that
Ganish was misleading Rubin about her financial situation.

27
Foreman testified that Rubin was in a panic believing,
incorrectly, she had no money left, and Ganish told a
Transamerica representative, with Rubin present, that Rubin
had lost money. Skolnick testified that he had many
conversations with Ganish and Rubin about purportedly missing
money. The probate court reasonably could infer Ganish misled
Rubin in order to make her fearful and further dependent on him,
including in regard to financial matters.
Ganish challenges the conclusion that he separated Rubin
from her family, noting that she continued to have contact with
family members after she met Ganish, and that it was Louis that
decided not to continue seeing her, not Rubin. This disregards
the evidence from multiple family members that Ganish
repeatedly interfered with their ability to reach Rubin, that he
failed to inform them when she was hospitalized, and that he
forced her to choose between him and Louis.
Ganish argues that evidence showed Rubin’s health
flourished under his care, and that he only took her from the
hospital out of concern that she had been overmedicated and was
in danger of dying if she remained. The probate court found
Ganish’s testimony not credible, a determination to which we
must defer. Ganish claims there was no evidence he prevented
Rubin from taking her prescribed medication, but Barbara, Blair,
and Foreman all testified that Rubin and/or Ganish had told
them she had either stopped or Ganish had told her to stop
taking medication. Multiple witnesses also testified that Ganish
or Rubin told them of Ganish’s strong aversion to Western
medicine, calling it “poison.”
Ganish notes that Rubin remained with her financial
advisor Yudis for some time over Ganish’s objection, and that

28
there was no evidence that Ganish ever took money from Rubin
or acted improperly in regard to her financial accounts. He
suggests this evidence establishes that he did not unduly
interfere in her financial decisions. Although Rubin apparently
resisted Ganish’s entreaties to rid herself of Yudis for a time, it is
undisputed she parted ways with Yudis years before she died.
Further, the fact that Ganish had the patience to wait for Rubin
to die before availing himself of her finances does not obviate the
possibility of undue influence. The evidence cited by Ganish does
not undercut the probate court’s ruling.

ii. Use of affection, intimidation, or coercion
The evidence showed Ganish used “affection, intimidation,
or coercion” to manipulate Rubin. (§ 15610.70, subd. (a)(3)(B).)
Ganish, as Rubin’s boyfriend, offered affection, then threatened
to withdraw it and leave her if she did not choose him over her
family, as testified to by Williams and Louis.

iii. Initiation of changes in personal or
property rights
There is little direct evidence that Ganish initiated any of
the changes Rubin made to her estate plan. (See § 15610.70,
subd. (a)(3).) Rubin’s attorney Skolnick testified that Ganish was
present during Skolnick’s discussions with Rubin, but that any
changes to the estate plan came from Rubin herself. Skolnick
testified the 2014 proposed change of trustee arose after Ganish
contacted Skolnick, although Skolnick testified the change was
his idea, not Ganish’s.
Given, however, the evidence set forth above of Ganish’s
near-total control over Rubin’s life, the probate court reasonably
could infer that Rubin was not making decisions without heavy

29
input from Ganish, and that it is highly unlikely she initiated on
her own the dramatic changes to her estate plan in her last few
years of life. This is reinforced by the fact that Ganish was
present when Rubin and Skolnick modified the estate documents,
and that at least one proposed change arose from a conversation
between Ganish and Skolnick.
As for Skolnick’s view that Rubin made her estate choices
freely, the probate court found Skolnick lacked personal
knowledge of Ganish’s and Rubin’s relationship, and did not find
Skolnick’s testimony persuasive. Again, we must defer to that
determination.

4. Equity of the result
As for the equity resulting from the changes to Rubin’s
estate plan, we focus on the “divergence from the victim’s prior
intent or course of conduct or dealing.” (§ 15610.70, subd. (a)(4).)
Rubin’s testamentary documents executed between 1995 and
2004 made significant distributions to friends and family,
particularly Foreman, with very specific gifts to charity. The
third amended and restated trust, executed in 2012 when Rubin
was 100 years old, changed all this, giving virtually everything to
Ganish except for greatly reduced gifts to Foreman and two other
beneficiaries. Rubin’s charitable gift was completely eliminated,
and she specifically disinherited Louis, who previously had been
entitled to a significant share of her estate as well as the return
of his promissory note. Rubin also favored Ganish’s children over
her own family, appointing them as successor beneficiaries to
Ganish, as well as successor trustees and executors.
There is nothing per se suspect about a person gifting
substantial assets to a romantic partner met later in life, in the
absence of other indicia of undue influence. Here, however,

30
Rubin’s almost total shift away from her previous intent toward a
plan that greatly benefitted Ganish and his family, at the
expense of Rubin’s own family, supports an inference of undue
influence, especially in light of the other factors under
section 15610.70 discussed above.
Ganish in his appellate briefing focuses on Louis,
particularly the evidence that Louis had no contact with Rubin
after 2009, and that Rubin was upset with Louis for not paying
back the loan. Ganish argues this evidence shows that he, and
not Louis, was the proper recipient of Rubin’s bounty.
The probate court found the evidence of Rubin’s anger with
Louis not credible and/or outweighed by the evidence of Louis’s
longstanding and warm relationship with Rubin prior to 2009.
We note that Louis testified he had paid Rubin $275 in interest
monthly from 1987 to 2009, and therefore had given her far more
than the $30,000 balance on the loan. Further, up until the third
amended and restated trust, Flora had always intended to forgive
the loan upon her death, which is inconsistent with her being
angry about the unpaid loan.
As for Louis’s lack of contact with Rubin after 2009, the
probate court reasonably could infer this was because of Ganish’s
efforts to drive a wedge between them. Even assuming Rubin
was upset with Louis for breaking ties with her, that anger would
be a result of Ganish’s undue influence, and not something from
which he should be allowed to benefit.
Regardless, Rubin’s feelings toward Louis do not explain
her apparent change of heart toward Foreman, who kept in touch
with Rubin on a weekly basis including in her last years of life, or
the other family members she cut out of the third amended and
restated trust. The record amply supports the conclusion that,

31
before and even after Ganish came into the picture, Rubin had
frequent and happy interactions with her extended family, and
there is no reason to think she would so dramatically cut them
out of her estate planning absent coercion from Ganish.
As a general argument against the probate court’s undue
influence finding, Ganish contends the probate court “did not find
that [Ganish] exerted undue influence over [Rubin’s] act of
executing the 2012 testamentary amendments or that he
somehow overcame her substantial and stubborn free will and
substituted his own will for hers.” Rather, “[t]he closest the
Court came was to say that ‘after knowing Victor for only a short
time,’ [Rubin] ‘suddenly began’ changing her estate plan to
benefit [Ganish].” Ganish notes that the 2004 changes occurred
after he met Rubin, and did not benefit him at all, and the later
changes that did benefit him arose after they had known each
other for a decade.
We disagree with Ganish’s characterization of the
statement of decision. The thrust of the ruling is that the probate
court found that Ganish had methodically dominated Rubin’s life
by separating her from family, caregivers, and advisors and
taking over her medical and other affairs. Viewed through that
lens, the dramatic changes to Rubin’s testamentary instruments
in her extremely advanced years strongly indicate undue
influence. The statement of decision is clear on that point.
The fact that Ganish and Rubin were together for some
years before she executed the instruments in his favor only
reinforces the point, because it establishes that he had time to
insinuate himself into her life and slowly take it over.

32
 5. Ganish’s cited cases are distinguishable
Ganish cites several cases in which courts reversed findings
of undue influence for lack of substantial evidence. As we
explain, these cases do not contain facts analogous to those in the
instant case, and are inapposite.10
In Estate of Llewellyn (1948) 83 Cal.App.2d 534 (Llewellyn),
the decedent in 1945 executed a new will in favor of his brother
while in the hospital after his brother had visited him “two or
three times a day” and assisted him in procuring an attorney and
witnesses. (Id. at pp. 540–541, 558.) The will was “entirely
inconsistent” with two earlier wills executed by the decedent.
(Id. at p. 545.) The contestants to the will, the decedent’s niece
and nephew, argued that prior to 1942 the brother had little
interest in the decedent, but after their sister died “he then
became a frequent visitor to [the decedent] and commenced a
systematic campaign to unduly influence the latter . . . .”
(Id. at p. 563.)
The Court of Appeal concluded that the evidence
“amounted to no more than a showing that [the brother] was so
situated as to have an opportunity to unduly influence the mind
of the testator and at the most, that the actions of [the brother]
might be described as suspicious.” The court concluded “such
evidence is entirely insufficient to support the finding of the
jury.” (Llewellyn, supra, 83 Cal.App.2d at p. 564.) “Before a
testamentary document will be overthrown because of the
exercise of undue influence, the proven circumstances must be

10 The cases cited by Ganish are factually dense. We focus
on those facts Ganish identifies as pertinent to the instant
appeal, and do not purport to summarize the cases in full.

33
inconsistent with voluntary action on the part of the testator.”
(Id. at p. 566.)
Estate of Welch (1954) 43 Cal.2d 173 (Welch) concerned a
challenge to a will executed by decedent Myrtle in favor of her
brother Arthur. Arthur had convinced Myrtle to let him move in
with her after Myrtle’s husband died, over the fierce objections of
their sister Geraldine. (Id. at pp. 176–177.) A few weeks later,
Arthur and Myrtle executed wills together, each leaving the
entirety of their property to the other. (Id. at p. 177.)
Subsequently there were disputes with relatives over living
arrangements of Arthur and Myrtle, and “Arthur systematically
excluded Geraldine and her sons from the house.” (Ibid.) There
was also evidence that, in the weeks before Myrtle died, more
than four years after she executed the contested will, Arthur
did not care for her well or arrange a proper burial. (Ibid.)
The Supreme Court reversed the jury’s finding of undue
influence for lack of sufficient evidence. (Welch, supra, 43 Cal.2d
at p. 180.) Among other things, the court noted that “Myrtle’s
mental and physical condition was not shown to have been such
as to permit a subversion of her freedom of will or to negate her
independent management of her own affairs. On the contrary, so
far as appears from the record, Myrtle was at all times a clear
thinking, deliberate woman, aware of her property holdings and
financial situation, and it was not until a few days before her
death that her general condition deteriorated.” (Id. at p. 178.)
In Estate of Wright (1963) 219 Cal.App.2d 164 (Wright), the
Court of Appeal held that the probate court erred in applying a
presumption of undue influence based on the beneficiary’s
confidential relationship with the decedent. (Id. at p. 169.) The
holding rested largely on the absence of evidence that the

34
beneficiary participated in preparing the contested codicil, a
necessary element of the presumption. (Id. at pp. 169–170.)
That the beneficiary transmitted the decedent’s instructions to
the attorney and was present when the decedent executed the
codicil were insufficient to establish the necessary active
participation. (Id. at p. 170.) The court further held that the fact
that the codicil preferenced the beneficiary, a friend of the
decedent, over the decedent’s blood relatives did not establish
that the codicil’s provisions were “unnatural” such that the
beneficiary unduly profited thereby. (Id. at pp. 170–171.)
Estate of Mann (1986) 184 Cal.App.3d 593 similarly held
the evidence did not support a presumption of undue influence
based on a confidential relationship between the beneficiary and
decedent. (Id. at pp. 606–609.) The fact that the will preferenced
one nephew over another did not render it unnatural. (Id. at
pp. 606–607.) Even if it did, the evidence that the beneficiary
“urged [the decedent] to make a will ‘if she was so inclined,’ took
her to an attorney for this purpose, and was present at the
execution of the will” was insufficient to show the beneficiary
“actively procured execution of the will.” (Id. at pp. 607–608.)
None of these cases presents facts similar to those of the
instant case, namely a beneficiary who over a period of years
used deception and the threat of withdrawal of affection to
control an extremely elderly and blind woman and isolate her
from those who had cared for her, thus making her fully
dependent on and devoted to him. Whatever evidence of undue
influence was lacking in Ganish’s cited cases is fully present here.
Wright and Mann are additionally inapposite in that both
concern a presumption of undue influence arising from a
confidential relationship. As Ganish concedes, the probate court

35
in the instant case did not rely on that presumption, and instead
placed the burden on Louis to prove his case.

36
 DISPOSITION
The orders are affirmed. Louis Cooper is awarded his costs
on appeal.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

37