Estate of Spencer CA2/6

Filed 4/18/22 Estate of Spencer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Estate of LELAND STANLEY 2d Civil No. B310065
SPENCER, Deceased. (Super. Ct. No. 56-2017-
00495573-PR-PL-OXN)
(Ventura County)

MARTHA A. SPENCER,

Petitioner and Respondent,

v.

LISA ANN SPENCER,

Objector and Appellant.

Appellant Lisa Ann Spencer is the daughter of Leland
Stanley Spencer (decedent), who died intestate. She appeals
from an order characterizing assets in which decedent or his
surviving spouse, respondent Martha A. Spencer (wife), had an
ownership interest.1 Appellant contends that the trial court
erroneously granted wife’s motion for summary adjudication.
The motion sought to characterize two residential properties as
wife’s separate property. In addition, appellant claims that the
probate court abused its discretion in bifurcating the
characterization issue from other pertinent issues. We affirm.
Factual and Procedural Background
Wife married decedent in 1990. Decedent had three adult
children from a prior marriage. He died in September 2016.
Wife was appointed administrator of his estate.
In September 2018 wife filed a petition to terminate the
probate proceedings and discharge the administrator because
“there is no property subject to administration.” The petition
listed various assets in which decedent or wife had an ownership
interest. Wife claimed that the listed “property is not subject to
administration because it is the separate property of [wife] or . . .
community property which passes to [wife] as the surviving
spouse of [decedent].” (See Prob. Code, § 6401, subd. (a) [“As to
community property, the intestate share of the surviving spouse
is the one-half of the community property that belongs to the
decedent”].)
Appellant objected that the assets listed in wife’s petition
“are directly traceable to [decedent’s] separate property.”
Appellant argued that wife had failed to show that decedent
“transmuted his separate property to either their community
property or to [wife’s] separate property.” Therefore, “ALL
property currently held and controlled by [wife] is . . . subject to
administration.”

1The order is appealable. (Prob. Code, §§ 1300, subd. (k),
850, subds. (a)(2)(C) & (D), 1303, subds. (f) & (h).)

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 Appellant filed her own petition requesting that wife be
directed to transfer to decedent’s estate specified properties held
in wife’s name as her separate property. Appellant alleged that
wife had “violated her fiduciary duties to [decedent] by taking
title to property acquired during the marriage as her sole and
separate property.” Appellant filed an additional petition
requesting that wife be directed to prepare “an account and an
inventory and appraisal of the administration” of decedent’s
estate.
The probate court “assign[ed] [wife’s] Petition for trial on
the issue of characterization of assets . . . to Judge O’Neill in
Department 41 [of the Civil Department], and abat[ed] all
petitions other than [wife’s] Petition pending resolution of the
matter of characterization of assets.” The probate court said to
the parties, “‘He [Judge O’Neill] has this file until you’re done
with trial on the characterization issue. And at that point, if you
want to continue with him to do whatever, that’s great. If not,
come back here and we’ll figure things out. [] Once we have the
characterization ironed out a lot of things will follow.’”
In Department 41 wife moved for summary adjudication as
to two residential properties – one in Westlake Village and the
other in Palm Desert, hereafter collectively referred to as “the
properties.” The motion was made “on the ground that there is
no triable issue of material fact . . . and [wife] is entitled to
judgment . . . determining these assets to be her sole and
separate property.” Wife alleged: “The Westlake Property was
the family home where [decedent] and [wife] resided from 2003
until [decedent’s] death in 2016, and where [wife] continues to
reside to this day.” “The Palm Desert Property was a second

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home that [decedent] and [wife] enjoyed together from 2007 until
his death in 2016.”
The trial court granted wife’s motion for summary
adjudication. As to the remaining assets, a court trial was
conducted concerning their characterization. The court found all
of the remaining assets to be community property. The court
explained its decision in a detailed, 29-page statement of
decision. It noted, “The object of this trial was not summary
resolution and closure of [decedent’s] Estate, but a limited
determination of the characterization of specific assets as
identified in [wife’s] petition.” The statement of decision
concluded with the following paragraph: “This is the final
decision and order of the superior court adjudicating the
characterization of assets identified above. There being no
remaining assets or issues that the Civil Department was tasked
to determine, the case is hereby remanded to the Probate
Department for further proceedings consistent with this final
decision.”
Summary Adjudication
Appellant contends that the trial court erroneously granted
wife’s motion for summary adjudication of her claim that the
properties are her separate property. “[S]ummary adjudication of
an issue under Code of Civil Procedure section 437c is a judicial
determination that the issue is not subject to further controversy
in the action and is deemed established at the most critical stage
of the action, the trial. Summary adjudication of issues has the
same evidentiary effect as a summary judgment except that it
does not determine all the material issues in the action and thus
precipitate entry of judgment.” (Abadjian v. Superior Court
(1985) 168 Cal.App.3d 363, 370.)

4
 “A summary adjudication motion is subject to the same
rules and procedures as a summary judgment motion. Both are
reviewed de novo.” (Lunardi v. Great-West Life Assurance
Co. (1995) 37 Cal.App.4th 807, 819.) A motion for summary
judgment “shall be granted if all the papers submitted show that
there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Code
Civ. Proc., § 437c, subd. (c).) A triable issue of material fact
exists only if “the evidence would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th, 826, 850, fn.
omitted (Aguilar).)
“[F]rom commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to
judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p.
850.) The moving party also “bears an initial burden of
production to make a prima facie showing of the nonexistence of
any triable issue of material fact; if he carries his burden of
production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima
facie showing of the existence of a triable issue of material fact.”
(Ibid.) “A prima facie showing is one that is sufficient to support
the position of the party in question.” (Id. at p. 851.) Unlike the
burden of production, the burden of persuasion never shifts; the
burden always rests on the moving party. (Id. at pp. 850-851.)
Wife produced evidence from which it may reasonably be
inferred that the properties were her separate property. The
grantors of the properties expressly conveyed them to wife as her

5
separate property. Decedent quitclaimed his interest in the
properties to wife as her separate property.
Appellant argues that, because the properties were
acquired during wife’s marriage to decedent, “the community
property presumption controlled.” The presumption is set forth
in Family Code section 760, which provides, “Except as otherwise
provided by statute, all property . . . acquired by a married
person during the marriage while domiciled in this state is
community property.”2
Wife concedes that “because the [properties] were acquired
during [decedent] and [wife’s] marriage . . . , the properties are
presumed to be community property.” But the deeds by which
decedent quitclaimed his interest in the properties to wife as her
separate property rebutted the community property presumption.
(See In re Marriage of Stoner (1983) 147 Cal.App.3d 858, 864
[community property “presumption was, of course, rebutted by
the quitclaim deed executed by husband and the community
obtained no interest”].) Appellant acknowledges that wife
“presented Quitclaim Deeds signed by [decedent] for both
properties, giving up all of his interest to Respondent as her
separate property.”
Moreover, the community property presumption of section
760 is trumped by the “well-established default rule that form of
title controls at death . . . .” (In re Brace (2020) 9 Cal.5th 903,
934; see id. at p. 932 [“the form of title controls the disposition of
joint tenancy property at death”]; Estate of Wall (2021) 68
Cal.App.5th 168, 175 [in action concerning the characterization of
decedent’s real property, “the probate court erred in determining

Unless otherwise stated, all statutory references are to
2

the Family Code.

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Family Code section 760 prevailed over [the form of title
presumption of] Evidence Code section 662,” which provides, “The
owner of the legal title to property is presumed to be the owner of
the full beneficial title”].) “In 1994, the Legislature amended
Family Code section 2040 to specify that when one party files for
divorce, ‘the summons shall contain the following notice:
“WARNING: . . . If either party to this action should die before
the jointly held community property is divided, the language of
how title is held in the deed . . . will be controlling and not the
community property presumption.”’ (. . . Fam. Code, § 2040,
subd. (c).)” (In re Brace, supra, at p. 932.)
Irrespective of the applicability of the community property
presumption of section 760, appellant argues that wife failed to
carry her burden of persuasion because of the application of the
undue influence presumption of section 721. Section 721,
subdivision (b) provides in relevant part: “[I]n transactions
between themselves, spouses are subject to the general rules
governing fiduciary relationships that control the actions of
persons occupying confidential relations with each other. This
confidential relationship imposes a duty of the highest good faith
and fair dealing on each spouse, and neither shall take any unfair
advantage of the other.”
Based on section 721, “if an interspousal transaction
results in one spouse obtaining an advantage over the other, a
rebuttable presumption of undue influence will attach to the
transaction.” (In re Marriage of Fossum (2011) 192 Cal.App.4th
336, 343-344.) “[Decedent] and [w]ife entered into . . .
interspousal transaction[s] [when decedent] sign[ed] . . .
quitclaim deed[s] permitting the [properties] to be acquired in
[wife’s] name only. Through [these] transaction[s], the

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[properties were] acquired as [wife’s] separate property. [Wife]
received an advantage or benefit from [decedent’s] execution of
the quitclaim deed[s] when the [properties] became [her] separate
property. [Thus], the statutory presumption of section
721 . . . appl[ies] to the instant case.” (In re Marriage of Mathews
(2005) 133 Cal.App.4th 624, 629.)
The undue influence presumption of section 721 prevails
over the form of title presumption of Evidence Code section 662.
(In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 998; In re
Marriage of Fossum, supra, 192 Cal.App.4th at p. 345 [“the form
of title presumption simply does not apply in cases in which it
conflicts with the presumption that one spouse has exerted undue
influence over the other”].) The undue influence presumption can
trump the “default rule that form of title controls at death . . . .”
(In re Brace, supra, 9 Cal.5th at p. 934.) In Lintz v. Lintz (2014)
222 Cal.App.4th 1346, 1353, the appellate court concluded that
the probate court should have applied the undue influence
presumption “to the transmutation of decedent's separate
property to community property . . . .”
“‘“When a presumption of undue influence applies to a
transaction, the spouse who was advantaged by the transaction
must establish that the disadvantaged spouse’s action ‘was freely
and voluntarily made, with a full knowledge of all the facts, and
with a complete understanding of the effect of’ the transaction.”
[Citation.]’ [Citation.] The advantaged spouse must show, by a
preponderance of evidence, that his or her advantage was not
gained in violation of the fiduciary relationship.” (In re Marriage
of Fossum, supra, 192 Cal.App.4th at p. 344.)
In her motion for summary adjudication, wife addressed
the undue influence presumption. Her declaration in support of

8
the motion referred only to the language of the quitclaim deeds
and to decedent’s 2012 email to a business partner. In the email
decedent said, “ALL the money is [wife’s] own sole and separate
property. This includes the . . . homes . . . . I own nothing.” Wife
did not describe the circumstances underlying decedent’s decision
to sign the quitclaim deeds.3
We need not determine whether wife rebutted the undue
influence presumption. If wife did not rebut it, the granting of
the motion for summary adjudication was harmless error. Code
of Civil Procedure section 475 provides: “No judgment, decision,
or decree shall be reversed or affected by reason of any error . . .
unless it shall appear from the record that such error . . . was
prejudicial, and also that by reason of such error . . . the said
party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been
probable if such error . . . had not occurred or existed. There
shall be no presumption that error is prejudicial, or that injury
was done if error is shown.” (See also Cal.Const., art. VI, § 13.)
“[T]he burden to demonstrate prejudice is on the appellant.”
(Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 528.)

3 In her appellate brief, wife also relies on the quitclaim
deeds and the 2012 email: “[T]he record establishes that
[decedent] knowingly and voluntarily participated in and
expressly consented to [wife] acquiring the Properties as her sole
and separate property. [Decedent] signed and notarized
[quitclaim] deeds stating his intent and purpose was to confirm
the Properties as the sole and separate property of [wife]. Years
later, [decedent] also confided to a business partner that the
properties were [wife’s] sole and separate property. [Appellant’s]
brief points to nothing in the record to suggest otherwise.”

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 “[F]acts found by the trial court following trial may be
relevant to the question whether error in a pretrial ruling was
prejudicial so as to warrant reversal of the judgment.” (Westlye v.
Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1742, fn. 19.) After
granting wife’s motion for summary adjudication, the trial court
conducted a seven-day trial on the characterization of decedent’s
remaining assets. One of the issues litigated was appellant’s
claim “that the community property presumption should not
apply to [the remaining] assets that [decedent] and [wife]
acquired during the marriage because [wife] ‘unduly influenced’
[decedent] in connection with their acquisition, in breach of her
fiduciary duties under Family Code section 721.” In its
statement of decision, the trial court rejected appellant’s claim of
undue influence. It found: “The evidence at trial was insufficient
to demonstrate that [wife] obtained any unfair advantage over
[decedent], or abused [decedent’s] trust and confidence in her, or
engaged in excessive persuasion overcoming [decedent’s] free will,
or engaged in a transaction involving the community property
without [decedent’s] consent. The evidence showed the opposite.
[Decedent] was a law school graduate and a sophisticated and
intelligent businessman and investor. [Decedent] was described
at trial as the ‘mastermind’ and the ‘driving force’ behind his and
[wife’s] business and investment arrangements over the
years. . . . Every witness who testified at trial . . . attested that
[decedent] . . . generally directed the transactions in which they
were engaged. . . . The ownership records for various properties
and businesses were titled in [wife’s] name because [decedent]
instructed that they be written that way. . . . [Appellant and her
sister] both testified at trial that they did not believe any of the
assets at issue were purchased without [decedent’s] consent, or

10
that [wife] persuaded, encouraged, pressured, induced, or
otherwise ‘influenced’ him to enter the transactions resulting in
their acquisition. [¶] . . . [T]he court finds, as a matter of fact,
that [wife] did not engage in any transaction or take any action
without [decedent’s] knowledge or consent, did not make
improper use of the confidence [decedent] reposed in her, did not
exert such persuasion on [decedent] as to overcome his free will,
and otherwise did not unduly influence [decedent] in any way.”
The court’s findings after trial demonstrate that, had the
motion for summary adjudication been denied and the undue
influence issue concerning the properties been tried, the court
would have found that wife had rebutted the undue influence
presumption of section 721. Therefore, if wife failed to rebut the
undue influence presumption in her motion for summary
adjudication, the erroneous granting of the motion did not
prejudice appellant.
Furthermore, the granting of the motion for summary
adjudication was not prejudicial irrespective of the court’s
findings after trial. Appellant maintains that, pursuant to the
community property presumption of section 760, the trial court
should have found the properties to be community property
because they were acquired during the marriage. But if the trial
court had so found, decedent’s community property share would
have passed to wife under the law of intestate succession. (Prob.
Code, § 6401, subd. (a); In re Brace, supra, 9 Cal.5th at p. 917 [“In
the absence of a will, . . . the decedent's share of the community
property passes through intestacy to the surviving spouse”].)
Thus, the result would have been the same irrespective of
whether the properties were characterized as community
property or wife’s separate property.

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 Bifurcation
Appellant claims that “the [probate] Court erred in
bifurcating the issue of characterization of assets” from other
issues presented by appellant’s petitions. “Only by litigating all
issues jointly could Appellant present a full and accurate picture
of the extent of Decedent’s estate and assets. Appellant was
deprived of her right to present her claims and evidence in the
most efficient and persuasive manner.”
The standard of review is abuse of discretion. “It is within
the discretion of the court to bifurcate issues or order separate
trials of actions, . . . and to determine the order in which
those issues are to be decided.” (Royal Surplus Lines Ins. Co.,
Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.)
Appellant has failed to provide an adequate record of the
proceedings concerning the probate court’s order bifurcating the
issues. According to the statement of decision, the order was
made “[a]fter hearing the argument of counsel” on April 18, 2019.
The statement of decision quotes excerpts from the reporter’s
transcript of the hearing. But the reporter’s transcript is not
included in the record on appeal.
“‘It is the duty of an appellant to provide an adequate
record to the court establishing error. Failure to provide an
adequate record on an issue requires that the issue be resolved
against appellant. [Citation.]’” (Hotels Nevada, LLC v. L.A.
Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) “The
absence of a record concerning what actually occurred at the
hearing precludes a determination that the court abused
its discretion. [Citations.] As the party challenging a
discretionary ruling, [appellant] had an affirmative obligation to
provide an adequate record so that we could assess whether the

12
court abused its discretion. [Citations.] Accordingly, she
has forfeited this argument on appeal.” (Wagner v.
Wagner (2008) 162 Cal.App.4th 249, 259.)
Respondent claims that appellant “never objected [to] or
challenged the bifurcation order.” Without a reporter’s transcript
of the hearing, we cannot verify respondent’s claim. If appellant
failed to object, she forfeited the bifurcation issue. (Steven W. v.
Matthew S. (1995) 33 Cal.App.4th 1108, 1117.)
Finally, appellant has failed to show that the bifurcation
order prejudiced her. “‘To establish prejudice, a party must show
“a reasonable probability that in the absence of the error, a result
more favorable to [her] would have been reached.”’” (Estate of
Herzog (2019) 33 Cal.App.5th 894, 903.) Appellant does not
explain how, in the absence of bifurcation, a result more
favorable to her would have been reached on the characterization
of the assets listed in wife’s petition.
Disposition
The order appealed from, i.e., the order characterizing the
assets listed in wife’s petition, is affirmed. Wife shall recover her
costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.

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 Vincent J. O’Neill, Jr., Judge*

Superior Court County of Ventura

______________________________

Pastor Law Group, Nathan D. Pastor and Christina P.
Tanti, for Objector and Appellant.

Ferguson Case Orr Paterson, David B. Shea and Joshua S.
Hopstone, for Petitioner and Respondent.

*Retired Judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.)