Burns v. Fitzgerald CA4/1

Filed 1/25/22 Burns v. Fitzgerald 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

TERRANCE BURNS et al., D078564

Plaintiffs and Respondents,

v. (Super. Ct. No. 37-2017-
00044744-PR-TR-CTL)
PATRICK FITZGERALD,

Objector and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Jeffrey B. Barton, Judge. Affirmed.
Greenberg Traurig, Scott D. Bertzyk and Karin L. Bohmholdt for
Objector and Appellant.
Henderson, Caverly, Pum & Trytten, Kristen E. Caverly and Lisa B.
Roper for Plaintiffs and Respondents, Terrance Burns and Margaret
Rasmussen.
INTRODUCTION
This appeal arises from a dispute between the heirs of Terence
Fitzgerald and the heirs of his wife, Barbara Fitzgerald, regarding the
characterization of shares of stock in a company formed during the course of
their marriage. Barbara’s heirs asserted the stock was community property
and filed a petition to recover assets, including, among others, a one-half
interest in the stock. Following a bifurcated trial on stipulated issues
concerning the characterization of the stock, the trial court issued a
statement of decision and order characterizing the stock as community
property.
Terence’s son, Patrick Fitzgerald (Patrick), appeals from the order and
asserts, as he did in the trial court, that the stock was Terence’s separate
property based on a Premarital Agreement (PMA) executed by Terence and
Barbara. In addition, Patrick asserts the trial court erred by denying a
motion in limine and allowing Barbara’s siblings and heirs, Margaret
Rasmussen and Terrance Burns (Terry) (together, Respondents),1 to change
theories after the close of discovery to assert the stock was not covered by the
PMA. Respondents contend the trial court’s order is not appealable because
it is not a final order and ask us to dismiss the appeal.
We conclude the order is appealable but find no error in the trial court’s
evidentiary ruling or its conclusion that the stock was community property.
We therefore affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND 2
Terence and Barbara were married in 1992. Terence had five children
from a previous marriage—Paul Fitzgerald, James Fitzgerald, Elizabeth
MacDonald, Kathleen Fitzgerald, and Patrick—who would later become his

1 As we later discuss, Barbara had a third sibling, David Burns, who is
also an heir to her portion of the estate, but he subsequently withdrew from
the petition and is not a party to the present appeal.

2 The following factual summary is taken primarily from the parties’
written stipulation of facts entered into evidence at trial.

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heirs (collectively, Terence’s heirs). Barbara did not have any children, but
did have three siblings—Margaret, David, and Terry—who would later
become her heirs (collectively, Barbara’s heirs).
Terence and Barbara executed a PMA prepared by Terence’s attorney.
The PMA states, “all property owned by either of them at the time of the
marriage shall remain each party’s separate property,” and includes a list of
each party’s separate property. The list of Terence’s separate property
includes, among other items, a 401(k) retirement plan and “[m]iscellaneous
employment benefits,” but does not include any right to purchase stock or
otherwise obtain ownership in any company.
The PMA also addresses income earned during the marriage. Under
the heading “COMMUNITY PROPERTY,” it states: “All earned income of
either party during the marriage, including but not limited to all times when
the parties are living together as husband and wife, from any source, shall be
the separate property of that party. This shall include any employment
benefits accruing during marriage, including but not limited to, 401K
contributions, pensions, stock options, and the like.” It provides that the
parties “may establish a joint account to meet their common expenses” and
“funds deposited into the joint account shall become community property.”
Further, “[a]ll assets acquired during marriage in the joint names of the
parties, to the extent there are title documents, shall be community property,
except that the parties may take title to property specifying unequal interests
held by each party.”
Before and at the time of marriage, Terence was the president of
PAFCO Importing Company, Inc. (PAFCO), a food importing subsidiary of

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Foodbrands America, Inc. (Foodbrands).3 However, by late 1995, Foodbrands
had decided to liquidate PAFCO and was discussing both a severance
package and a potential purchase of the PAFCO assets with Terence.
In March 1996, approximately four years into the marriage, Terence
and business partner David Sjostrom (Sjostrom) formed F&S Acquisition
Company (F&S) to acquire the assets of PAFCO. Each contributed $25,000
in exchange for 25,000 shares of common stock and, on April 18, 1996, F&S
issued stock certificates to Terence and Sjostrom reflecting their respective
shares. F&S also executed a promissory note in favor of Terence. Concurrent
with the transaction, and also on April 18, 1996, Terence and Barbara signed
a “DECLARATION ACKNOWLEDGING AND IDENTIFYING
COMMUNITY PROPERTY” (the Declaration), in which they acknowledged:
“[A]ll interest in F & S . . . held in the name of Terence S. Fitzgerald is held
as such for convenience only, and is in fact our community property” and “all
amounts loaned to the company to date by Terence S. Fitzgerald constitute

our community property.”4 (Italics added.)
F&S subsequently acquired assets from PAFCO, including the rights to
the PAFCO name, and changed its name to PAFCO Importing Company,

3 According to Patrick, Terence formed PAFCO, along with Patrick’s
grandfather, sometime around 1980, but later relinquished ownership. It is
undisputed that Terence did not own PAFCO at the time of Terence and
Barbara’s marriage.

4 The record suggests Terence entered into a separate severance
agreement with Foodbrands around the same time, but the agreement was
not entered into evidence at trial.

4
Inc.5 Terence was the president of F&S and was also on the board of
directors, along with Sjostrom and another individual, Robert Cook. In
February 1997, Sjostrom resigned and Barbara was elected as a director in
his place. She also took on the role of Vice President. For the next 17 years,
until the time of Barbara’s death, Terence and Barbara served as directors
and as President and Vice President of F&S, respectively.
In December 1998, Terence and Barbara created “The Terence and
Barbara Fitzgerald Trust” (the Trust). The Trust documents were prepared
by the same law firm as the F&S formation documents. The Trust stated,
“[a]ny community property transferred to the trust shall remain community
property after its transfer.” It further provided that, upon the death of either
Barbara or Terence, the Trust was to be divided “into three separate trusts,
designated the ‘Survivor’s Trust,’ the ‘Exemption Trust,’ and the ‘Marital
Trust.’ ” The Survivor’s Trust was to include “the Surviving Settlor’s interest
in the Settlors’ community property” and the remainder was to be split
between the Exemption Trust and the Marital Trust in accordance with
certain federal estate tax thresholds. Upon the death of the Surviving
Settlor, the Survivor’s Trust was to be distributed to the heirs of the
Surviving Settlor and the Exemption and Marital Trusts were to be combined
and distributed to the heirs of the other, previously deceased spouse.
Schedule A to the Trust identified all shares of F&S common stock as
community property and identified the promissory note payable to Terence as
Terence’s separate property. Concurrent with the funding of the Trust, F&S
cancelled the certificate in the name of Terence and issued a new certificate

5 For ease of reference, and to distinguish the different corporate
entities, we will continue to refer to the company formed by Terence and
Sjostrom in 1996 as F&S.

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to “ ‘Terence S. Fitzgerald and Barbara Burns Fitzgerald, as Trustees of the
Terence and Barbara Fitzgerald Trust u/t/d 12.15.98.’ ” Terence also

assigned the promissory note that F&S had issued to him to the Trust. 6
In 2007, a different attorney, Peter Moye, prepared an “Amended and
Restated Terence and Barbara Fitzgerald Trust” (the Restatement).
Although somewhat more complex, the Restatement retains the same basic
structure with distribution of assets through the three separate trusts upon
the death of both spouses and does not materially change the treatment of
the couple’s community property. Moye testified at trial by deposition and
said that he received a copy of Schedule A from the original Trust and that
Terence and Barbara reported nothing had changed, so he used the same
Schedule A for the Restatement.
Barbara died in September 2014. Terence served as the sole trustee of
the Trust after Barbara’s death, and Moye served as the trust administration
counsel. Terence made cash gifts of $15,000 to each of Barbara’s siblings in
accordance with instructions in the Restatement but did not otherwise give
notice to Barbara’s heirs of any of the resulting trusts. According to
Barbara’s heirs, Terence did not fund the Exemption Trust as required by the
trust documents.
Terence died in July 2017. Terence’s daughter Elizabeth and Barbara’s
brother Terry became Co-Trustees of the Trust. In November, Terry filed a
petition, as co-trustee, seeking an order characterizing the F&S stock as
community property and instructing the co-trustees to fund the Exemption
Trust with one half of the community property, among other relief. Barbara’s

6 The couples’ respective property rights in the promissory note are not
at issue on appeal.

6
other heirs joined the litigation, and, in November 2018, they filed another
petition pursuant to Probate Code sections 850, 17200, and 17206, seeking
recovery of assets that should have been administered to the Exemption
Trust, including the F&S stock, or, in the alternative, damages for the failure
to properly fund the Exemption Trust, as well as an injunction freezing the
assets until the underlying issues were resolved. Patrick filed a response and

objections to the petition.7
F&S was liquidated and wound down beginning in the fall of 2018. The
proceeds were held by the co-trustees and the parties subsequently stipulated
to a bifurcated trial on the following two limited issues: 1) whether the F&S
stock was community property or the separate property of Terence; and 2) if
it was community property, the date upon which the Exemption Trust’s 50
percent interest should be valued for purposes of funding.
Following the bifurcated trial, the trial court issued a statement of
decision resolving the two issues. The court found that F&S was formed
during the marriage and, concurrent with its formation, Terence and Barbara
signed the Declaration acknowledging the stock was their community
property. Regarding the PMA, the court found “the term ‘employment
benefits . . . and the like’ [was] vague and ambiguous”; the PMA was “silent
regarding the character of property acquired during marriage that [was] not
earned income, not employment benefits and not ‘in the joint names of the
parties’ ”; and the list of Terence’s separate property did not reflect “any stock
options, rights to purchase assets from his employer or entity ownership.”
The court concluded that property acquired during marriage was

7 The record indicates Elizabeth remains the co-trustee for Terence’s
heirs, but none of Terence’s other heirs joined in the objections, or the present
appeal.

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presumptively community property, and that Patrick failed to rebut the
presumption. The court therefore characterized the F&S stock as community
property, and ordered that the value for purposes of funding the Exemption

Trust should be calculated as of the date of Barbara’s death.8
The court issued an order characterizing the stock as community
property and Patrick timely appealed.
DISCUSSION
I.
Appealability
Before turning to the merits, we first address Respondents’ pending
motion to dismiss the appeal. Respondents assert the order characterizing
the F&S stock as community property is not an appealable “final order”
because it does not resolve all issues in the underlying petition. We disagree.
An appeal may be taken from any order made appealable by the
Probate Code. (Code Civ. Proc., § 904.1, subdivision (a)(10).) Appealable
orders are set forth in Probate Code sections 1300 through 1304. Probate
Code section 1300, subdivision (k), provides that an appeal may be taken
from an order “[a]djudicating the merits of a claim made under Part 19
(commencing with Section 850) of Division 2.” Probate Code section 850,
subdivision (a)(3)(B), in turn, allows a trustee to file a petition requesting
that the court make an order “[w]here the trustee has a claim to real or
personal property, title to or possession of which is held by another.” Probate
Code section 1304, subdivision (a), further provides that an appeal may be
taken from any “final order” made pursuant to Probate Code section 17200,
with the exception of orders compelling an accounting or accepting the

8 The date of valuation is not at issue on appeal.

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resignation of a trustee. Probate Code section 17200, in turn, provides that a
trustee or beneficiary of a trust may petition the court for orders concerning
the internal affairs of the trust, which includes, but is not limited to, orders
“[a]scertaining beneficiaries and determining to whom property shall pass or
be delivered upon final or partial termination of the trust, to the extent the
determination is not made by the trust instrument.” (Prob. Code, § 17200,
subds. (a), (b)(4).)
Here, Barbara’s heirs filed a petition pursuant to Probate Code sections
850, 17200, and 17206, and asserted they had a claim to property—the F&S
stock—that was improperly withheld from the Exemption Trust. The court
adjudicated the merits of that claim when it determined the F&S stock was
community property such that Barbara’s heirs did, in fact, have an interest in
the stock. Moreover, the order effectively determined to whom the shares
should pass upon termination of the Exemption Trust. Therefore, the order
was appealable in accordance with both Probate Code section 1300,
subdivision (k) and Probate Code section 1304, subdivision (a).
Respondents, however, assert the order was not a final order because it
did not resolve all issues in the petition and did not determine the exact
dollar amount to be recovered by the Exemption Trust or Barbara’s heirs.
Respondents rely primarily on civil cases discussing the one final judgment
rule but, here, the order is made appealable not because it is a final
judgment, but by application of statutes specifically making certain orders of
the probate court appealable. (See Code Civ. Proc., § 904.1, subds. (a)(1),
(10); Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1124–1125 [explaining
the difference between final orders under section 1304 and a final
judgment].)

9
 Further, in this context, we look to the order itself, and its legal effect,
as opposed to the underlying petition, when determining whether the order is
appealable. “[W]hen an order that might not otherwise be appealable
‘expressly or implicitly decides other issues that could be the subject of an
appealable probate order,’ the order is appealable.” (Gridley v. Gridley (2008)
166 Cal.App.4th 1562, 1586; see also Estate of Miramontes-Najera (2004) 118
Cal.App.4th 750, 755 [“it is well established that a probate order’s
appealability is determined not from its form, but from its legal
effect”].) Although it does not resolve all claims at issue in the petition, the
order does resolve finally the claims of Barbara’s heirs regarding their
entitlement to a community property interest in the F&S shares.
The order is appealable and we therefore deny Respondents’ motion to
dismiss the appeal.
II.
The Trial Court Did Not Err by Characterizing the F&S Stock
as Community Property
Turning to the merits, Patrick’s primary contention on appeal is that
the F&S stock was Terence’s separate property. He contends Terence started
PAFCO and served as its president for years before the marriage, and that
the acquisition of the PAFCO assets was a “benefit[ ]” of that employment,
such that it was Terence’s separate property pursuant to the PMA. In
addition, he contends, even setting the PMA aside, a preponderance of
evidence proves the F&S stock was Terence’s separate property. We do not,
however, reweigh the evidence under the applicable standard of review. On
the record before us, we conclude that substantial evidence supports the trial
court’s factual findings that the F&S stock was acquired during the marriage,

10
it was therefore presumptively community property, and Patrick has failed to
rebut that presumption.
A. Relevant Legal Principles and Standard of Review
“Except as otherwise provided by statute, all property, real or personal,
wherever situated, acquired by a married person during the marriage while
domiciled in this state is community property.” (Fam. Code, § 760.) “Thus,
there is a general presumption that property acquired during marriage by
either spouse other than by gift or inheritance is community property unless
traceable to a separate property source.” (In re Marriage of Haines (1995) 33
Cal.App.4th 277, 289–290 (Haines); see also In re Brace (2020) 9 Cal.5th 903,
924, 927 (Brace) [confirming the community property presumption set forth
in Family Code section 760 applies to all property acquired during marriage
on or after January 1, 1975].) “This is a rebuttable presumption affecting the
burden of proof; hence it can be overcome by the party contesting community
property status.” (Haines, at p. 290; accord In re Marriage of Weaver (2005)
127 Cal.App.4th 858, 864.) However, “the burden is on the spouse asserting
its separate character to overcome the presumption.” (See v. See (1966) 64
Cal.2d 778, 783; In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1185–
1186 [spouse asserting property is actually separate property must overcome
the community property presumption]; accord In re Marriage of Valli (2014)
58 Cal.4th 1396, 1400 [“A spouse’s claim that property acquired during a
marriage is separate property must be proven by a preponderance of the
evidence.”].)
Of relevance here, California recognizes the ability of parties to enter
into binding premarital agreements regarding the characterization of their
property, including variances with the statutory community property
presumption. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 13 (Bonds); Fam.

11
Code, § 1612.) Thus, absent fraud, duress, or undue influence, premarital
agreements are generally enforceable. (Bonds, at p. 13.) Further, where
there is a dispute as to the terms of a premarital agreement, “[t]he rules
applicable to the interpretation of contracts have been applied generally to
premarital agreements.” (Ibid.)
“The status of property as community or separate is normally
determined at the time of its acquisition.” (In re Marriage of Bouquet (1976)
16 Cal.3d. 583, 591.) “If it is community property when acquired, it remains
so throughout the marriage unless the spouses agree to change its nature.”
(See v. See, supra, 64 Cal.2d at p. 783.) Family Code section 850 provides
that married persons may transmute community property to the separate
property of either spouse, or vice versa, but, pursuant to Family Code section
852, “[a] transmutation of real or personal property is not valid unless made
in writing by an express declaration that is made, joined in, consented to, or
accepted by the spouse whose interest in the property is adversely affected.”
We review the trial court’s characterization of the F&S stock as
community property under a mixed standard of review. (In re Marriage of
Lehman (1998) 18 Cal.4th 169, 184; In re Marriage of Brandes (2015) 239
Cal.App.4th 1461, 1472.) We review the court’s factual findings for
substantial evidence. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725,
734; In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051–
1052 (Hill & Dittmer) [“it is well established that the trial court weighs the
evidence and determines issues of credibility and these determinations and
assessments are binding and conclusive on the appellate court”].) However,
where “the basic ‘inquiry requires a critical consideration, in a factual
context, of legal principles and their underlying values,’ the determination in
question amounts to the resolution of a mixed question of law and fact that is

12
predominantly one of law,” which we review de novo. (Lehman, at p. 184;
Brandes, at p. 1472; Rossin, at p. 734.)
Patrick contends our review in this case should be purely de novo
because there are no factual disputes. Although the parties did stipulate to a
significant portion of the underlying facts, a number of Patrick’s assertions
on appeal⎯including the intent of the parties and the assertion that Terence
acquired the PAFCO assets as a benefit of his employment⎯are based, at
least in part, on factual disputes. To the extent the trial court made relevant
factual findings, we will not reweigh the evidence and will, instead, accept
the court’s findings so long as they are supported by substantial evidence.

(See Hill & Dittmer, supra, 202 Cal.App.4th at pp. 1051–1052.)9
B. The F&S Stock Was Presumptively Community Property
The trial court found F&S was formed—and the F&S stock at issue in
this appeal was acquired—during the course of Terence and Barbara’s
marriage. Substantial evidence supports that factual finding and the trial
court’s conclusion that the stock is presumptively community property.
There is no dispute that Terence and his business partner Sjostrom
formed F&S to acquire the assets of PAFCO in March 1996, and that the
original stock certificate was issued to Terence that April, while Terence was
married to Barbara. Patrick misapprehends the issue, however, and asserts
that Terence started PAFCO long before he and Barbara were married. He

9 Patrick also asserts there is no “presumption of correctness” because he
filed objections to the proposed statement of decision, but the cases he relies
on deal instead with preservation of issues on appeal. (See In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1134 [party must point out deficiencies in
statement of decision to avoid implied findings and inferences]; In re
Marriage of Hardin (1995) 38 Cal.App.4th 448, 453, fn. 4 [addressing
preservation of issues on appeal].)

13
presents no evidence that Terence had any ownership interest—or any right
to obtain an ownership interest—in the original PAFCO company when he
and Barbara got married. Several years later, while still married, Terence
and his business associate formed a different company, F&S, and that
company acquired the assets of the original PAFCO company, including the
name. As F&S did not exist until 1996, any interest Terence had in F&S was
necessarily acquired during the marriage.
Thereafter, the parties continually acted in accordance with the
statutory presumption of community property. Although the original stock
certificate was issued in Terence’s name, Terence and Barbara executed the
Declaration that same day, in which they acknowledged, “all interest in F & S
. . . is in fact our community property.” Patrick asserts the Declaration is not
reliable because the original was never found but he does not provide any
evidence suggesting the copy was not authentic or any authority concluding
an original was necessary. Moreover, the couple created the Trust a couple of
years later and, with the assistance of counsel, again confirmed their

intention that the stock was community property in schedule A.10 They then
had F&S issue a new certificate to “ ‘Terence S. Fitzgerald and Barbara
Burns Fitzgerald, as Trustees of the Terence and Barbara Fitzgerald Trust
u/t/d 12.15.98.’ ” Finally, they reaffirmed their intention once again in 2007
when they executed the Restatement, informed their counsel that there were
no changes to their property interests, and, thus, used the same schedule A.

10 Patrick contends these documents are not proof of the parties’
intentions because they are inconsistent with the PMA and insufficient to
effectuate a transmutation. But, of course, those arguments assume,
contrary to the trial court’s finding, which we discuss post, that the PMA
made the F&S stock Terence’s separate property.

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 Because substantial evidence supports the trial court’s finding that the
F&S stock was acquired during the marriage, the trial court correctly
concluded the stock was presumptively community property in accordance
with Family Code section 760.
C. Patrick Failed to Rebut the Statutory Presumption
The statutory presumption under Family Code section 760 is rebuttable
by credible evidence showing, for example, “an agreement or clear
understanding between parties regarding ownership status.” (Haines, supra,
33 Cal.App.4th at pp. 289–290.) However, the burden falls to the party
seeking to overcome the presumption and Patrick has not met that burden.
(See v. See, supra, 64 Cal.2d at p. 783.)
1. The PMA Does Not Characterize the F&S Stock as Terence’s
Separate Property
Patrick’s primary contention on appeal is that the PMA defined the
F&S stock as Terence’s separate property, and the trial court erred because it
“never bothered to interpret” the PMA. To the contrary, the trial court did
interpret the PMA. It concluded the PMA was “silent regarding the character
of property acquired during marriage that [was] not earned income, not
employment benefits and not ‘in the joint names of the parties’ ”; “the term
‘employment benefits . . . and the like’ [was] vague and ambiguous” but the
parties’ conduct evidenced that they did not consider the F&S stock to be
Terence’s separate property; and the list of Terence’s separate property did
not reflect “any stock options, rights to purchase assets from his employer or
entity ownership.” The court therefore looked to evidence of the parties’
intent, and concluded Terence and Barbara intended the F&S stock to be
community property. We find no error in the trial court’s conclusions.
“The property rights of spouses prescribed by statute may be altered by
a premarital agreement or other marital property agreement.” (Fam. Code,

15
§ 1500; see also Fam. Code, §§ 1611, 1612.) Written premarital agreements
are generally considered to be enforceable contracts, and are subject to the
same rules of interpretation as any other contract. (Bonds, supra, 24 Cal.4th
at p. 13.) “The primary object of contract interpretation is to ascertain and
carry out the mutual intention of the parties at the time the contract was
formed, determined from the writing alone, if possible. [Citations.] When the
language of a contract is ‘clear, explicit, and unequivocal, and there is no
ambiguity, the court will enforce the express language.’ ” (In re Marriage of
Nassimi (2016) 3 Cal.App.5th 667, 688 (Nassimi).) We construe “the
language of [each] provision . . . in context, in view of the intended function of
the provision and of the contract as a whole.” (Ibid.) To ensure our
interpretation is consistent with the intent of the parties, we may also
consider the circumstances under which the contract was made, as well as
other extrinsic evidence that illuminates the parties’ intent. (Ibid.; Civ. Code,
§ 1647; In re Marriage of Benson (2005) 36 Cal.4th 1096, 1108.) Where there
is ambiguity in the terms that is not readily resolved by the other rules of
interpretation, “the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist.” (Civ. Code,
§ 1654.)
Here, as the trial court correctly observed, the PMA does not
specifically address the character of an ownership interest in a company
acquired during the course of the marriage. Patrick contends the PMA
provides that all assets brought into the marriage or acquired during the
marriage are separate property unless placed in a joint bank account or
subject to a title document expressly naming both parties, and therefore the
F&S stock must be Terence’s separate property. Patrick’s interpretation of
the PMA is not consistent with the plain language of the PMA.

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 First, the PMA states the parties “intend that all property owned by
either of them at the time of marriage shall remain each party’s separate
property.” (Italics added.) By its plain language, this refers to separate
property in existence before the marriage. The PMA then sets forth a list of
each party’s separate property and, not surprisingly, does not list any
potential ownership interest in F&S or the PAFCO assets as Terence’s
separate property. As Patrick himself concedes, he did not have a potential
ownership interest in either at the time of the marriage. Thus, the F&S
stock was not Terence’s separate property at the time of marriage pursuant to
the PMA.
Regarding assets acquired during the marriage, the PMA states, “[a]ll
earned income of either party during the marriage . . . shall be the separate
property of that party,” and “[t]his shall include any employment benefits
accru[ed] during marriage, including, but not limited to, 401K contributions,
pensions, stock options, and the like.” Thus, the PMA clearly identifies a
single category of assets acquired during marriage—earned income, including
employment benefits—as each spouse’s separate property. The PMA further
states that “[t]he parties may establish a joint account to meet their common
expenses” and “[a]ny funds deposited into the joint account shall become
community property.” (Italics added.) In addition, it includes the following
provision regarding assets jointly acquired during marriage subject to title
documents (hereinafter, the joint title provision): “All assets acquired during
marriage in the joint names of the parties, to the extent there are title
documents, shall be community property, except that the parties may take
title to property specifying unequal interests held by each party, in which
case the specified unequal title interests shall be and remain separate

17
property interests of each party.”11 (Italics added.) Notably, it does not state
that any property not held in a joint account or subject to a title document in
the joint names of the parties is separate property.
Patrick asserts that, pursuant to the PMA, both the property brought
into the marriage by each spouse and all income earned during the marriage
by either spouse was each party’s separate property. Based on those
provisions, he contends all property acquired during the marriage must
necessarily be separate property as well because such property could only be
acquired with “earned income.” He further contends, based on that
interpretation, that the parties must have intended to replace the statutory
community property presumption with paragraph five of the PMA, and, as a
result, the only two ways for the parties to create community property was to
deposit funds into a joint account or to take title in the joint names of the

parties.12
The PMA does define the assets that the parties brought into the
marriage and the earned income of each party during marriage as their
separate property. However, the PMA stops there. As the trial court

11 As discussed in more detail, post, Evidence Code section 662 provides a
presumption of ownership based on legal title that may be implicated when
real property is titled to husband and wife as joint tenants as it often is by
default. (See Brace, supra, 9 Cal.5th at pp. 914–934 [detailing the history of
Evidence Code section 662 and Family Code section 760].)

12 We note that Patrick includes a significant amount of argument in the
statement of the case, and later incorporates entire sections by reference in
his legal argument. Although we have considered the entirety of the briefing
on appeal, “[w]e are not bound to develop appellants’ arguments for them.
[Citation.] The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived.” (In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone).)

18
correctly observed, the PMA is silent as to the characterization of property
acquired during marriage that is not earned income. While property may be
acquired with earned income, or separate property, the terms are not
synonymous, as Patrick’s assertions imply and, of course, property could also
be acquired through the joint contributions of both spouses. Although Patrick
suggests otherwise, there is ample evidence that Barbara did have her own
separate property and that she also earned income during the marriage, as
we discuss in more detail, post. Terence had the assistance of counsel and, if
he had wished to define all property acquired during the marriage as each
spouse’s separate party, subject only to the joint account and joint title
exceptions delineated in the PMA, he could have included straightforward
language to that effect. He did not.
Patrick further contends the F&S stock is Terence’s separate property
under the PMA because it is “an ‘employment benefit accru[ed] during the
marriage.’ ” As set forth in the PMA, the term “employment benefits” falls
within the definition of “earned income” and includes, but is “not limited to,
401K contributions, pensions, stock options, and the like.” Under the
principle of ejusdem generis, “where specific words follow general words in a
contract, ‘the general words are construed to embrace only things similar in
nature to those enumerated by the specific words.’ ” (Nygard, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, 1045.) Thus, we construe the general
terms “including, but not limited to” and “and the like” in the context of the
more specific enumerated terms. While 401(k) contributions, pensions, and
stock options are all commonly understood benefits of employment, we agree

19
with the trial court that the F&S stock did not fall within that same

category.13
Such an interpretation is consistent with the language of the contract
as a whole and the evidence of the parties’ mutual intent. (See Nassimi,
supra, 3 Cal.App.5th at p. 688.) There is no basis in the PMA or the record
from which to conclude that “employment benefits . . . and the like” includes
an ownership interest in a new company formed during the marriage. To the
contrary, while the other items are all common benefits of employment that
provide additional earnings with minimal risk, acquisition of an ownership
interest in a company in lieu of employment necessarily entails greater risk
and may actually result in a decrease in earnings. Moreover, as the trial
court concluded, the parties unambiguously stated that the stock was “in fact
[their] community property” in executing the Declaration and specifically
listed the stock as community property in schedule A. Such conduct leaves
no room for interpretation; the couple did not believe the acquisition of an
interest in F&S was an “employment benefit” under the PMA. Thus, we
agree with the trial court’s conclusion that the F&S stock was not “earned
income” or an “employment benefit” as those terms are used in the PMA.
Patrick raises several arguments to the contrary, but we are not
persuaded by any. First, Patrick asserts Terence “had been running PAFCO”
for the previous 16 years and, thus, the assets he acquired were the direct
result of his own labors, “many of them occurring prior to marriage.” He

13 The trial court found “the usage of the term ‘employment benefits . . .
and the like’ vague and ambiguous,” but ultimately concluded the conduct of
the parties indicated the F&S stock was not an “employment benefit” under
the PMA. We are not bound by the trial court’s interpretation when
conducting a de novo review of the contract language but, nevertheless, we
reach the same ultimate conclusion as the trial court.

20
asserts Terence’s “right to re-acquire” PAFCO was an “ ‘employment benefit
accru[ed] during the marriage,’ ” akin to a stock option. It is not. A stock
option is a type of bonus or profit-sharing in which a company gives an
employee the right, or option, to buy shares of stock at a discounted or fixed
price. (See In re Marriage of Hug (1984) 154 Cal.App.3d 780, 785.) As we
have explained, Terence did not acquire stock in PAFCO—the company he
worked for—and Patrick presents no evidence indicating Terence had any

special right to acquire PAFCO, or its assets, arising from his employment.14
To the contrary, it is undisputed that F&S—which was formed by Terence
and his business partner during the marriage—purchased the assets from
PAFCO in what appears to be an arm’s length transaction.
To the extent Patrick asks us to infer that the purchase price reflected
some sort of discount as a benefit of Terence’s previous employment, the
record does not support that contention. Although Terence negotiated his
severance from Foodbrands concurrently with the purchase of the PAFCO
assets, the letters between Terence and Foodbrands discussing his severance
and the potential acquisition of assets show, as the trial court concluded,
“that Terence rejected the proposal that he forego a separate severance

14 At oral argument, Patrick’s counsel asserted that the purchase and sale
of PAFCO was “expressly carved out” in Terence’s severance agreement with
Foodbrands as “a right” Terence would take with him upon termination of his
employment, and thus acquisition of the F&S stocks was a benefit like a right
to a stock option that arose from his employment. But as we previously
noted, the severance agreement is not in the record. (See fn. 4 ante.) Rather,
counsel directed this court to an unsigned copy of a single page of a severance
agreement that is in the record and, contrary to his assertion, the language
on which he appears to rely simply excludes any rights or claims arising from
that separate transaction from the general release of claims associated with
the severance agreement.

21
package as part of any asset purchase agreement.” Patrick offers no credible
evidence to refute this fact.
Second, Patrick asserts Barbara’s heirs’ interpretation of the PMA
renders it largely irrelevant because it would have no application to
separately held assets. As an initial matter, the contention is at least in part
based on the fact that the parties agreed that certain retirement accounts—a
category of employment benefits specifically addressed in the PMA—are the
separate property of each spouse. It further assumes that the PMA does not
address separately held assets at all if we conclude the joint title provision
does not apply to property that is held by one party alone. To the contrary,
the PMA also defines several items as each spouse’s separate property,
regardless of title documents. The PMA is not rendered irrelevant simply
because one or more assets are not jointly titled and also do not fall within

the enumerated categories of each spouse’s separate property.15
In sum, we agree with the trial court that the F&S stock does not fall
under the category of “employment benefits” as defined by the PMA and is
not otherwise specifically addressed in the PMA. Accordingly, the PMA does
not alter the characterization of the F&S stock and, likewise, does not rebut
the statutory presumption that the F&S stock is community property.

15 Patrick also contends that Respondents’ interpretation of the PMA is
“absurd” because it would allow one party to hold a 99.9999 percent interest
in property as their separate property—if so defined by a joint title
document—while defining property titled solely to one party as community
property. He does not develop the argument, including explaining what
Respondents’ interpretation even is or how it leads to such an allegedly
absurd result, nor does he provide any record citation. Because we are not
bound to develop his arguments, we treat the contention as waived. (Falcone,
supra, 164 Cal.App.4th at p. 830.)
22
 2. Additional Evidence Does Not Rebut the Community Property
Presumption
Setting aside the PMA, Patrick asserts he presented sufficient
additional evidence to rebut the presumption. In doing so, Patrick asks us to
reweigh the evidence presented in the trial court, and to ignore the trial
court’s finding that there was no evidence that either spouse identified the
F&S stock as Terence’s private property during their lifetimes. Moreover, as
he did in the trial court, Patrick overstates the significance of much of the
evidence he relies on, which consists largely of financial documents prepared
for purposes other than characterizing the couple’s property interest. By
contrast, as we have explained, in the few instances where the parties
directly addressed the characterization of the F&S stock—in the Declaration
and in Schedule A—they consistently characterized it as community
property.
Patrick asserts the stock certificate, and various other financial
documents listing Terence as the shareholder, prove Terence was the sole
owner. As we have already discussed, the stock certificate itself is not
dispositive as the parties executed the Declaration the same day explicitly
stating that the stock was “held in the name of Terence . . . for convenience
only,” and it “is in fact [their] community property.” (Italics added.) Since
the Declaration states the stock was issued in Terence’s name for convenience
only, it is not surprising that he was subsequently listed as the owner or
shareholder in various other documents. For example, Patrick points to a
“DECLARATION REGARDING INVESTMENT” in which Terence
represented he was acquiring the shares “for investment for Investor’s own
account, and not with a view to or for sale[.]” (Italics added.) As this
declaration itself suggests, the purpose of the document was not to
characterize the stock as Terence’s personal property, but was instead to

23
ensure he was not planning to sell the stock. Similarly, Patrick points to a
document in which the officers approved Terence’s request to transfer “the
shares he holds” to the Trust but, of course, the shares were listed, at that
time, in his name. Moreover, the very purpose of the document was to cancel
the certificate in Terence’s name and re-issue a new certificate in the name of
the Trust, and the same document states Terence wishes to transfer the
shares to the Trust, of which he and Barbara “will be the settlors, trustees,
and lifetime beneficiaries.” (Italics added.)
Patrick also contends Terence stated F&S was his own corporation and
that he bought his own company in a document submitted to the social
security agency, but those statements were made in the context of explaining
why he had received wages from what appeared to be a single company name
under two separate employer identification numbers. Similarly, Terence
stated that he transferred $25,000 in exchange for F&S stock in a tax filing
for the purpose of asserting the transaction was a “tax-free transfer of
assets.” None of these statements were made for the purpose of
characterizing the property as Terence’s separate property.
Next, Patrick asserts all available evidence shows Terence paid for the
F&S stock with his own money. While tracing is one way that a party may
overcome the community property presumption, it would not be sufficient in
this case because here, the parties also executed the Declaration concurrently
with the purchase declaring that the stock was in fact their community
property. Thus, even if Patrick could establish that the stock was purchased
with Terence’s separate property, it would not necessarily follow that the
stock was Terence’s separate property as a result.
In any event, Patrick does not present any evidence actually tracing the
funds and, instead, argues the money must have come from Terence’s

24
separate account.16 Patrick relies on various financial statements to assert
the couple never created the joint account contemplated by the PMA, but
those statements are joint statements and they provide no details regarding
the listed accounts beyond the bank at which they were held. Regardless,
Barbara could have contributed funds to the purchase of F&S stock even in
the absence of a joint bank account. Patrick contends Barbara could not have
done so because, according to the PMA, she entered the marriage with only
$10,000 in total net assets, “meaning her available cash was even lower than
that.” So, he asserts, “Barbara plainly lacked the financial wherewithal to
fund a $25,000 stock purchase and $175,000 loan to PAFCO.” He ignores the
fact that Barbara earned income throughout the marriage, including an
annual salary of approximately $65,000 from 1993 to 1996, three years before
F&S purchased the stock. Patrick’s own sister also testified at trial that
Barbara had an account in her own name with a balance of approximately
$130,000. Patrick fails to identify that account or any other account into
which Barbara’s earnings were placed, and thus it appears the evidence he
relies upon does not accurately represent the totality of the couple’s finances.
Patrick further contends we can infer Terence paid for the PAFCO
stock with his separate property because the severance amount he received
was the same as the purchase price for the PAFCO assets. Again, the record
does not support his contention. The only document Patrick references sets
the purchase price for the inventory—the bulk of the assets purchased—as
the “book value” on the closing date, less an agreed upon discount of “the
smaller of (i) 10% of [the] book value or (ii) $25,000.” This document is not

16 Patrick contends tracing is not necessary because the joint title
provision of the PMA eliminated the need for tracing. As we have already
explained, we disagree with Patrick’s interpretation of that provision.

25
sufficient to establish the actual purchase price of the PAFCO assets. While
we acknowledge courts have some flexibility to consider indirect evidence of
tracing, here, the evidence is simply insufficient. (See In re Marriage of
Ciprari (2019) 32 Cal.App.5th 83, 97 [“trial courts have the flexibility to
consider any credible evidence and to evaluate alternative tracing methods to
determine whether the proponent of the tracing carries his or her burden of
proof”].)
Next, Patrick asserts Terence represented to his children that they
would inherit the company upon his death. He provides no authority a self-
serving oral statement is sufficient to alter the characterization of the
property and, to the contrary, Family Code section 852 requires that a
transmutation be in writing by an express declaration. To the extent he
asserts Terence’s statements are evidence of his intent at the time of signing
the PMA, the alleged statements occurred years later, primarily during
informal conversations in which Patrick admitted that Terence did not “get
into specifics about his estate assets” or “how his estate was structured.”
Similarly, Patrick asserts Terence’s actions after Barbara’s death is
evidence that Terence believed the stock was his separate property. To the
contrary, it is undisputed that Terence allocated everything except the
$15,000 cash distribution specified in the Restatement to his own Survivor’s
Trust, including other items that were at least allegedly Barbara’s separate
property. Terence’s own mishandling of the Trust after Barbara’s death is
not evidence of the party’s mutual intentions at the time of marriage.
In sum, none of the evidence Patrick presents is sufficient to overcome

the statutory presumption that the F&S stock was community property.17

17 Patrick asserts neither the Declaration nor any other document in the
record was sufficient to effectuate a transmutation of the F&S stock from
26
 3. The Title Presumption Set Forth in Evidence Code Section 662
Does Not Overcome the Community Property Presumption
Evidence Code section 662 provides: “The owner of the legal title to
property is presumed to be the owner of the full beneficial title. This
presumption may be rebutted only by clear and convincing proof.” Here, the
trial court cited our high court’s recent decision in Brace and concluded that
“[t]he presumption that property acquired during marriage is community
property trumps the form of title presumption in Evidence Code section 662.”
(See Brace, supra, 9 Cal.5th at p. 935.)
In his opening brief, Patrick asserted the trial court’s statement
regarding the relative weight of the two presumptions was “irrelevant”
because he never argued that title was controlling. However, in
supplemental briefing based on a recently published opinion from our sister
court, Estate of Wall (2021) 68 Cal.App.5th 168 (Wall), he now contends the
trial court’s statement was error and that Evidence Code section 662 should
prevail over the community property presumption in Family Code section
760. (See Wall, at p. 174 [Concluding Evidence Code section 662 prevails

“when determining the character of real property in a probate matter.”].)18
We conclude Wall is not instructive here as it involved title in the form
of a deed to real property, not stock. (Wall, supra, 68 Cal.App.5th at p. 169.)
In any event, Wall relies on Brace, in which our high court held “that the

Terence’s separate property to community property. Because we have
concluded the stock was always community property, and was never
Terence’s separate property in the first instance, no transmutation was
necessary. Accordingly, we need not, and do not, address this assertion.

18 The parties requested the opportunity to submit additional briefing
addressing the impact of the decision in Wall on this case. We granted the
request and have reviewed and considered the supplemental letter briefs.
27
community property presumption in Family Code section 760 applies not only
to dissolution actions, . . . and that Evidence Code section 662 does not apply
when it conflicts with the Family Code section 760 presumption.” (Brace,
supra, 9 Cal.5th at p. 935; Wall, at p. 175.)
In Brace, the Court addressed whether the form of title presumption
set forth in Evidence Code section 662 applied to the characterization of
property in a dispute between a married couple and a bankruptcy trustee
over real property titled to the couple as “ ‘ “husband and wife as joint
tenants.” ’ ” (Brace, supra, 9 Cal.5th at pp. 911–913.) To answer the
question, the Court conducted a comprehensive review of the origins of both
the community property and title presumptions under California law.
As the Court explained, historically, women did not have the same
rights as their husbands to manage or control community property. (Brace,
supra, 9 Cal.5th at p. 918.) The Legislature created the “married woman’s
presumption”—which stated, in part, the conveyance of property to a married
woman by an instrument in writing created a presumption that title was
vested in her as her separate property—“ ‘to facilitate the wife’s management
of property’ by expanding her ability to acquire and manage separate
property.” (Ibid.) However, “[t]he married woman’s presumption, when
applied together with the community property presumption, sometimes led to
claims by married women for more than a half interest in property jointly
deeded to husband and wife.” (Ibid., italics added.) To address this concern,
“the Legislature added language to Civil Code former section 164 to provide
that joint conveyances to husband and wife created a presumption of
community property unless the form of title indicated otherwise.” (Id. at
p. 921, italics added.) Later, in 1973, the “Legislature enacted landmark
reforms that allocated equal management rights to the wife over community

28
property,” and “eroded the original impetus for facilitating the wife’s
ownership of separate property.” (Id. at p. 923.) Thus, as the Court
explained, “the rules characterizing property . . . based on form of title have
faded,” and, unlike the former statutes, “Family Code section 760 does not
permit the community property presumption to be rebutted simply by the
manner in which a married couple takes title.” (Id. at p. 927.)
As a result, the Court concluded Evidence Code section 662 does not
overcome the community property presumption in Family Code section 760,
and expressly refused to limit its holding to the context of marital
dissolutions. (Brace, supra, 9 Cal.5th at p. 928.) To address arguments
raised by the appellants, the Court went on to explain, “our approach does
not undermine the stability of title in the context of probate,” and in that
context, stated, “[c]ourts have consistently held that for property titled in
joint tenancy, the form of title controls at death.” (Id. at p. 931.) Thus, as the
Court explained, its holding “does not alter the well-established default rule
that form of title controls at death, nor does it alter the procedures through
which a surviving joint tenant may clear title to real property held in joint
tenancy.” (Id. at p. 934, italics added.)
In Wall, a husband died intestate and his wife petitioned the probate
court for an order determining their home, which was titled in the husband’s
name alone, was in fact community property. (Wall, supra, 68 Cal.App.5th at
p. 169.) The husband’s children objected and, on appeal, asserted, among
other arguments, that the trial court erred when it determined the Family
Code section 760 community property presumption prevailed over the
Evidence Code section 662 form of title presumption. (Id. at pp. 169–170.)
The appellate court relied heavily on the Brace decision, but focused
primarily on the high court’s comments regarding stability of title and the

29
“ ‘default rule that form of title controls at death.’ ” (Id. at p. 175.) In doing
so, the Wall court concluded that “the probate court erred in determining
Family Code section 760 prevailed.” (Ibid.) However, because the husband
assured the wife her execution of a quitclaim deed putting the property in his
name “meant nothing,” the court ultimately set aside title under the undue
influence presumption set forth in Family Code section 721. (Wall, at
pp. 172–173.)
To state the obvious, the property at issue in this case is not real
property. Thus, neither Brace nor Wall, which both address title in the form
of a deed to real property, are directly on point. Changing course, Patrick
now asserts the stock certificate is “the title document of relevance,” akin to
the deeds at issue in Brace and Wall, but he provides no authority indicating
a stock certificate is a title document under either Evidence Code section 662
or the more general default rule discussed in Brace that form of title controls
at death. (Cf. In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 591–594
[refusing to apply Evidence Code section 662 presumption based on placing
“title” to stock in wife’s name].) To the contrary, as explained in Brace, those
title presumptions arose from concerns regarding the ways in which spouses
took joint title to real property. (See Brace, supra, 9 Cal.5th at pp. 918–927.)
Further, even if the stock certificate could be considered a title
document, Brace is the controlling authority and, there, the Court held
“that Evidence Code section 662 does not apply when it conflicts with
the Family Code section 760 community property presumption.” (Brace,
supra, 9 Cal. 5th at p. 912.) We do not read the Court’s statements in Brace
regarding the default rule that, for property titled in joint tenancy, form of
title controls at death as carving a wide exception to its primary holding that
“Evidence Code section 662 does not apply to property acquired during

30
marriage when it conflicts with Family Code section 760,” or as suggesting
Evidence Code section 662 governs over Family Code section 760 in all
probate actions. (See Brace, supra, 9 Cal.5th at p. 938, italics added.)
Instead, as we have explained, the Court’s discussion in Brace was centered
squarely in the context of the joint title set forth in deeds to real property.
(See Brace, supra, 9 Cal.5th at pp. 918–927.)
Finally, even were we to consider the stock certificate as a title
document, Patrick ignores the form of title at the time of death. At the time
of both Barbara and Terence’s deaths, the stock certificate was issued to
Terence and Barbara, as co-trustees of the Trust, and not to Terence in his
own name. And the Trust and Restatement unambiguously defined the F&S
stock as the couple’s community property. (See Allen v. Sutter County Bd. of
Equalization (1983) 139 Cal.App.3d 887, 890 [“it is a rudimentary principle of
trust law that the creation of a trust divides title—placing legal title in the
trustee, and equitable title in the beneficiaries”]; Brace, supra, 9 Cal.5th at
pp. 931–934 [discussing common law rule that form of title controls at
death].) Patrick contends the transfer of the stock to the Trust is
“immaterial,” but Patrick himself contends the original stock certificate is a
title document. Thus, even if we were to accept his assertions, which we do
not, that title controls at the time of death and the stock certificate is a valid
title document, we would conclude the relevant title document establishes
that the stock was held by Terence and Barbara as their community
property.

31
 III.
The Trial Court Did Not Abuse Its Discretion by Denying
Appellant’s Motion in Limine
Patrick also contends the trial court erred by denying his motion in
limine and allowing Barbara’s heirs to change theories after the close of fact
discovery. We disagree.
Barbara’s heirs originally asserted the PMA had been revoked, in part
because the original could not be located. However, in January 2020, the
attorney who prepared the PMA provided a copy of the original, along with a
declaration certifying the document. In a deposition that same month, a
rebuttal expert for Barbara’s heirs opined, in response to questions asked by
opposing counsel, that an asset taken solely in the name of one party would
not fall under the joint title provision of the PMA.
Approximately 10 months later, on the eve of trial, Patrick asserted, in
a motion in limine, that the rebuttal expert had presented a new theory after
the close of fact discovery. Based on that contention, he asked the court to
exclude “any evidence or argument to the effect that (i) although the express
purpose of the [PMA] was to comprehensively ‘defin[e] their respective
property rights following their contemplated marriage’ (Trial Ex. 1, p. 1),
somehow it failed to address a circumstance where one spouse took title to an
asset solely in his or her name, as happened with respect to the [F&S] stock
(where Terence Fitzgerald took title alone); and (ii) as a consequence,
statutory presumptions as to whether assets are community or separate
property were left undisturbed.” He also asked the court to exclude the
expert as not timely disclosed and not the subject of proper rebuttal.
The trial court excluded the expert but concluded the theory was “a
matter of contract interpretation and argument” and that “[t]he failure to

32
disclose in discovery can be cured by a request for continuance which, at least
at this point, has not been made, if there is true prejudice.” Patrick’s counsel
did not request a continuance or argue the issue further.
We review the trial court’s ruling on the motion in limine for an abuse
of discretion. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153
Cal.App.4th 257, 269.) We “will not disturb the trial court’s decision unless
the trial court exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination.” (Ceja v. Dept. of
Transportation (2011) 201 Cal.App.4th 1475, 1481.) Here, the trial court
reasonably determined the theory was primarily a legal theory and that any
prejudice could have been resolved by a continuance. Having failed to seek a
continuance, or additional discovery, despite the court’s ruling, Patrick
cannot now complain that he was prejudiced by the late disclosure.
Patrick asserts the trial court should have held Barbara’s heirs to their
sworn positions, but the primary case he relies upon concerns an affirmative
admission that the party sought to reverse at trial. (See Universal
Underwriters Ins. Co. v. Sup. Ct. (1967) 250 Cal.App.2d 722, 725–726, 729
[“With the receipt of Universal’s answer to interrogatory 4, Pacific’s attorneys
were entitled to rely on Universal’s admission that it did not contend that
there was any legal consideration.”].) By contrast here, the allegedly new
theory did not directly contradict any of Barbara’s heirs’ previous responses.
To the contrary, Barbara’s heirs always contended the F&S stock was
community property and that Terence and Barbara never intended for
Terence to take title of the stock as his separate property.
Moreover, the discovery requests included in the motion did not ask
Barbara’s heirs to provide their interpretation of any provision of the PMA.
When counsel asked the expert to do so at deposition, 10 months before trial,

33
the expert provided his response. If Patrick believed he needed additional
discovery as a result of the disclosure, he could have requested additional
discovery. (Code Civ. Proc., § 2024.050 [addressing motions to reopen
discovery].) Again, he did not make any attempt to do so.
Accordingly, we find no abuse of discretion in the trial court’s denial of
the motion in limine.
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

DO, J.

WE CONCUR:

AARON, Acting P. J.

DATO, J.

34