Filed 4/19/23 Wohlberg v. Craig CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ANNE WOHLBERG, B313107
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STPB03004)
v.
CATHRYN CRAIG, as trustee,
etc., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel Juarez, Judge. Affirmed.
James A. Rainboldt for Plaintiff and Appellant.
Donahoe Young & Williams, Mark T. Young and Taylor F.
Williams-Moniz for Defendants and Respondents.
Anne Wohlberg (appellant) appeals from a judgment
entered after the trial court granted summary judgment in favor
of respondents Cathryn Craig, as Trustee of the Gene Wohlberg
Irrevocable Trust dated August 27, 2018 (trust), and Michael
Alan Wohlberg (collectively respondents) on appellant’s petition
filed pursuant to Probate Code section 850 seeking to return
property held in the trust.
Appellant has failed to show error; therefore we affirm the
judgment.
BACKGROUND
The family
Appellant is the widow of decedent Gene Wohlberg.
Appellant and Gene Wohlberg were married on June 25, 1978.
Gene Wohlberg died on October 14, 2018. Appellant moved into a
facility for those with Alzheimer’s disease or dementia on
November 1, 2018.
Respondents are the biological son and daughter of Gene
Wohlberg from a previous marriage. Ingrid Fields and Steven
Wohlberg are also the biological offspring of Gene Wohlberg from
a previous marriage. Kenneth Brookes and Nancy Dominguez
are Anne Wohlberg’s biological children from a previous
marriage.
The trust
The trust was created in August 2018 as a “Medi-Cal” trust
“designed to allow Decedent to qualify for Medi-Cal health
insurance benefits by placing a portion of Decedent’s and
[appellant’s] assets in the [t]rust.” At the time the trust was
created, decedent had “no expectations of dying and no terminal
health conditions,” and “he was concerned that he and [appellant]
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would not have enough money to live out their retirement.”
Craig testified that appellant was aware of the trust and was
aware of what was going on at the time the trust was created.
Appellant was present with decedent and discussed it on a
number of occasions. Appellant also accompanied Craig to the
bank to make deposits into the trust. Appellant was “aware and
consented to the use of community assets to fund the [t]rust.”
Craig testified: “This was not done lightly. This was
conversations with her and [decedent] about what they were
trying to accomplish because they knew that risk mitigation was
kicking in and they had to do something because dad was not
coming out of the facility any time soon. So this was a way to
protect whatever money they had for the future.”
Appellant was “very well aware of what was going on”
during the creation of the trust. Appellant was informed that “if
[appellant and decedent] don’t do something to preserve these
assets, if [decedent’s] condition stays, there won’t be any money
left to do longterm care for him. A skilled nursing or at home is
potentially thousands of dollars every month and there won’t be
money left.”
Jane McNamara, the California attorney who assisted
decedent and appellant in setting up the trust, testified that
“because of the trust and the Medi-Cal planning . . . , [decedent]
was approved for Medi-Cal as of October 1. So there was a
savings there. So every month that he went forward in living,
Medi-Cal would have paid a substantial amount of the nursing
home bill, the doctors, his Medicare premiums.”
In June 2018, at the decedent’s initial consultation with
McNamara, decedent informed McNamara that appellant was in
the “early/mid stages” of dementia. However, he never expressed
3
any misgivings about appellant’s decisionmaking ability, except
that she might be unduly influenced by her daughter.
McNamara personally spoke with appellant about the creation of
the trust. McNamara stated that she and appellant “talked
about the irrevocable trust and why we were doing it that way
and what was happening with it.” McNamara attested that it
was decedent’s wish that appellant be taken care of, and “it was
his belief that the irrevocable trust would preserve the assets so
if he or [appellant] were in need, it would be of assistance . . . .”
The idea was that there could be a distribution to one of the kids
who would then assist appellant with her needs. Half of
decedent’s community property funds were to be used for the
irrevocable trust and for the retainer agreement. McNamara
understood that appellant’s portion of the community property
was not part of the Medi-Cal planning.
On August 27, 2018, Craig became the trustee of the trust.
The trust directed that the decedent’s assets should be divided
among decedent’s four children and appellant’s son, Kenneth
Brookes. Appellant’s daughter, Nancy Dominguez, was
specifically disinherited.1 Appellant is not a beneficiary of the
trust. However, Craig testified that she understood that her
obligation as trustee was to save the money for appellant. Craig
stated, “this money was for [appellant’s] use. We have been
trying to preserve that for her for a very long time. That’s what
this is for is to help [appellant].” Craig confirmed, “[decedent’s]
wishes were to have this money in the trust for [appellant] in
four years when she needed it . . . and I was happy to—and
1 Respondents represent that Nancy Dominguez was also
disinherited in a previous joint trust dated October 2, 2017.
However, the previous trust is not in the record.
4
Michael and Steven and Ingrid, we were happy to make sure to
the best of our ability—that this money was here for her.” Craig
testified that decedent had calculated that appellant had enough
to live on for four years and that his children were directed to
preserve the balance of the funds “to cover anything that she
needed after that.”
The life insurance policy
Decedent also had a Genworth Life and Annuity Term Life
Policy (policy), which had a benefit of approximately $135,000
upon decedent’s death. In or around November 2017, decedent
told respondents that he had stopped making payments on the
policy because the premium was too expensive. Decedent told
respondents that if they paid to reinstate the policy and made its
premium payments, decedent would change the beneficiary from
appellant to respondents. As a result, on February 15, 2018,
respondents paid to reinstate the policy and continued to make
the required payments until decedent’s death.
Craig was present on March 5, 2018, when the beneficiary
change form was signed by both decedent and appellant.
Respondents had no reason to believe appellant did not sign the
document knowingly and voluntarily. Decedent had not intended
to keep the policy if respondents did not pay to keep it in effect.
PROCEDURAL HISTORY
On March 29, 2019, appellant filed a “Petition for Return of
Property held in the Gene Wohlberg Irrevocable Trust Dated
August 27, 2018” pursuant to Probate Code section 850 (petition).
The petition named as respondents Craig, as trustee of the trust,
and Michael Wolhberg. The petition alleged that in August 2018
cash in the sum of $200,947.11 was transferred out of a
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community brokerage account, and appellant did not consent to
the transfer. It was alleged that the trust now holds these funds.
Through the petition, appellant requested return of the full
amount of these funds. The petition alleged that the trust was
created without her “involvement, consent or knowledge.” The
petition further alleged that respondents changed decedent’s life
insurance policy for which appellant was the beneficiary.
Appellant demanded that respondents return all funds to her and
all life insurance proceeds that were paid to respondents, the
trust or any other family members.
On May 16, 2019, respondents filed objections to the
petition. Respondents stated that appellant was informed and
consented to the use of marital funds to fund the trust and was
aware of, and consented to, the change of beneficiaries on the life
insurance policy. Respondents asserted that appellant “is not of
sound mind” and was diagnosed with early onset Alzheimer’s
disease sometime in 2018.2 Respondents also asserted that “at
the time of the [t]rust’s creation, [appellant was] fully aware of
the benefits to her then husband and the resulting reduction in
assets she might inherit after her husband’s death.”
Respondents asked that appellant’s petition be denied.
On July 28, 2020, respondents filed their motion for
summary judgment along with a separate statement and
appendix of evidence in support of the motion. In the motion,
respondents argued that there was no evidence in support of
appellant’s assertions that marital property had been
2 Upon review of appellant’s medical records, respondents
corrected this allegation in the motion for summary judgment,
confirming that appellant had been diagnosed with dementia in
2019.
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misappropriated. Appellant objected to being deposed in the
matter because she “lack[ed] the capacity to recollect events
pertinent to this action” and had “diminished capacity.” Her son
Kenneth Brookes acted as her attorney-in-fact. Brookes admitted
that he has no present knowledge of any of the allegations in the
petition, was unaware of appellant’s mental state at any time
relevant to the proceedings, and had no involvement with
appellant’s or decedent’s estate planning or financial affairs.
Appellant filed an opposition to the summary judgment
motion on December 7, 2020. Appellant filed an appendix of
evidence in support of her opposition, including a declaration of
James Randy Mervis, M.D. Mervis reviewed appellant’s medical
records and concluded with a “reasonable degree of medical
certainty” that she was suffering from progressive dementia that
precluded her from having the ability to understand signing the
life insurance change of beneficiary in March 2018 and
irrevocable trust in August 2018.
On December 11, 2020, respondents filed a reply brief.
Among other things, respondents argued that appellant could not
allege new facts in opposition to summary judgment to create a
triable issue of fact. Respondents also argued that expert
opinions acquired after the fact to oppose a motion for summary
judgment do not create triable issues of fact.
On January 4, 2021, the trial court issued a minute order
granting respondents’ motion for summary judgment. The court
noted that the evidence “uniformly” contradicted appellant’s
allegations that community property assets were wrongly used to
create the trust and that respondents improperly changed the
beneficiary on the policy at issue. The policy beneficiary change
form was signed by appellant and copies of checks showing
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withdrawals showed she took an active role in funding the trust.
The court noted that while appellant asserted for the first time in
opposition to summary judgment that she lacked capacity to
agree or was the victim of undue influence, that such new
theories were not properly raised for the first time in opposition
to summary judgment. While appellant sought to amend her
pleadings, the court cited Distefano v. Forester (2001) 85
Cal.App.4th 1249, 1264-1265 (Distefano) for the proposition that
“‘[i]f the opposing party’s evidence would show some factual
assertion, legal theory, defense or claim not yet pleaded, that
party should seek leave to amend the pleadings before the
hearing on the summary judgment motion.’”
The court’s order granting summary judgment and denying
appellant’s petition with prejudice was entered on March 11,
2021.
On May 12, 2021, appellant filed her notice of appeal from
the judgment.
DISCUSSION
I. Standard of review
When reviewing a trial court’s order granting summary
judgment, we independently examine the record to determine
whether triable issues of fact exist. (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).)
The initial burden is on the moving party to establish that the
opposing party cannot establish one or more elements of the
cause of action. After the moving party makes such a showing,
the burden then shifts to the opposing party. (Ibid.)
In performing the de novo review, we view the evidence in
the light most favorable to the losing party. We liberally
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construe the opposing party’s evidence, in order to resolve any
evidentiary doubts in that party’s favor. (Wiener, supra, 32
Cal.4th at p. 1142.) Our review is limited to “the facts contained
in the documents presented to the trial court.” (Torres v.
Reardon (1992) 3 Cal.App.4th 831, 836.) We undertake the
following three-step analysis: “We first identify the issues framed
by the pleadings, since it is these allegations to which the motion
must respond. Secondly, we determine whether the moving party
has established facts which negate the opponents’ claim and
justify a judgment in the movant’s favor. Finally, if the summary
judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable,
material factual issue.” (Ibid.)
II. Summary judgment was properly granted
As the trial court noted, appellant’s petition was unclear as
to the theory under which she sought relief. She asserted that
the sum of $200,947.11 was transferred from a community
property account to the trust without her consent. She requested
return of the funds in the full amount. She asserted that the
trust was created without her “involvement, consent or
knowledge.” Appellant further alleged that prior to Gene
Wohlberg’s passing, respondents changed a life insurance policy
for which appellant was the beneficiary, naming themselves as
beneficiaries. Appellant demanded that the life insurance
proceeds be returned to her.
There is no evidence that the transfers in question were
done without appellant’s consent or knowledge. To the contrary,
all evidence shows that appellant was involved, consented, and
had knowledge of the transactions.
9
As to the creation of the trust, there is documentary
evidence in the form of checks signed by appellant showing that
she took an active role in funding the trust.3 Testimony on the
subject comes from Craig, who testified that appellant was “very
well aware” of what was going on with the creation of the trust.
In addition, McNamara, the attorney who helped decedent create
the trust, testified that she had discussions with appellant
regarding the creation of the trust and that appellant was aware
of what was going on. There is no evidence to the contrary.
As to the change of beneficiaries on the life insurance
policy, appellant’s consent is documented by her signature on the
policy beneficiary change form. Craig was present when
appellant signed the form. There is no evidence that appellant
was unaware or did not consent to the change. On the contrary,
the only evidence in the record, which was obtained from
respondents, was that appellant and decedent could no longer
afford to pay the premiums on the policy and it was in danger of
lapsing. Decedent therefore offered to change the beneficiary of
the policy if respondents paid the premiums.
3 Appellant notes that the checks funding the trust signed by
Gene Wohlberg were made out to “Cathryn Craig, Trustee of the
Gene Wohlberg Irrevocable trust dated 8/27/18” while the checks
funding the trust signed by appellant were made out to “Cash.”
This alone is insufficient to create a triable issue of fact as to
appellant’s consent. The checks were all for the same amount
and were made from the same account within a few weeks after
the creation of the trust. There is no indication in the record that
appellant was being deceived as to the purpose of the checks.
Craig provided the only testimony on the subject. She stated that
appellant knew the checks were for the trust. There is no
evidence to the contrary.
10
In sum, there was no evidence in the record to support
appellant’s contentions that the act of creating the trust and the
act of changing the beneficiary on the life insurance policy was
done without her involvement, consent or knowledge.
III. The court properly declined to consider new theories
raised in opposition to summary judgment
Following submission of respondents’ motion for summary
judgment, appellant asserted new theories that appellant “lacked
capacity or was the subject of undue influence.” The trial court
properly declined to consider such new theories because they
were raised for the first time following respondents’ motion for
summary judgment. (Distefano, supra, 85 Cal.App.4th at p. 1264
[“To create a triable issue of material fact, the opposition
evidence must be directed to issues raised by the pleadings.”].)
Appellant takes issue with this ruling, asserting that
appellant’s allegation that the trust was created without her
“involvement, consent or knowledge” necessarily raised her
present contentions surrounding her mental capacity and
excessive persuasion.4 We disagree that allegations regarding
appellant’s competence may be implicitly found in the pleading.
There is a rebuttable presumption that “all persons have the
capacity to make decisions and to be responsible for their acts or
4 Appellant represents that Probate Code section 850—the
statute under which the petition was brought—generally
concerns minors and conservatees, both of whom lack capacity.
We disagree with appellant’s characterization of the statute as
necessarily involving an individual that lacks capacity. Probate
Code section 850 is a general provision specifying who can file a
petition requesting that the court make an order and does not
specifically deal with issues of impairment.
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decisions.” (Prob. Code, § 810, subd. (a).) In the absence of
specific allegations that appellant lacked such capacity,
respondents had no reason to respond to such a premise.
Respondents were entitled to rely on the allegations of the
pleadings in preparing their summary judgment motion.5
Appellant also asserts on appeal that respondents were
acting as fiduciaries to appellant during the time that the
transactions were carried out. Significantly, the existence of a
fiduciary relationship was not alleged in the petition, nor did
appellant allege a breach of fiduciary duty by respondents.
However, even if she had made such allegations, the evidence
does not support such a claim.
Appellant cites Barrett v. Bank of America (1986) 183
Cal.App.3d 1362, 1369, for the proposition that “[c]onfidential
and fiduciary relations are in law, synonymous and may be said
to exist whenever trust and confidence is reposed by one person
in another.” There is no evidence in the record that respondents
were acting in such a capacity towards appellant.6 Craig testified
5 Appellant also argues that because, in their objections to
appellant’s petition, respondents raised the issue of appellant’s
mental incapacity, respondents themselves have introduced this
issue as a triable issue of fact. Respondents’ assertion as to
appellant’s present state of mind are not relevant to the
allegations in the petition that the transactions were undertaken
without appellant’s consent or knowledge. They do not serve to
raise a triable issue of fact as to appellant’s mental state at the
time of the transactions at issue.
6 Craig agrees that she became a fiduciary as trustee of the
trust on August 27, 2018. However, Craig’s role as trustee of the
trust does not include a fiduciary duty to appellant, who is not a
beneficiary of the trust.
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that she regularly communicated with decedent about many
aspects of his life, including his financial affairs. Michael
Wohlberg also stated that he had a close relationship with
decedent and communicated with him regularly regarding many
areas of his life, including his financial affairs. However, neither
of the respondents provided any testimony or other evidence
suggesting that they were acting in a fiduciary capacity towards
either decedent or appellant. The evidence showed that decedent
relied on an attorney in creating the trust. Appellant’s assertions
that respondents owed her a fiduciary duty are not legally
supportable.
Based on the faulty premise that respondents owed her a
fiduciary duty, appellant asserts that respondents were required
to provide her with full and fair disclosure of the financial
transactions that took place prior to Gene Wohlberg’s death. She
also asserts that undue influence is presumed under such
circumstances, and gifts to a fiduciary are presumptively void.
We decline to address these assertions in detail, as they were not
raised in the petition, and the record does not support them.
Appellant further argues that under Family Code section
721 there is a rebuttable presumption of undue influence when
one spouse gains an advantage over the other. As set forth
above, appellant never alleged undue influence in her petition,
nor did she assert a violation of Family Code section 721.
Although it is unclear what specific transaction appellant is
referring to with respect to Family Code section 721—the
creation of the trust was designed to protect the assets of
appellant and decedent in allowing decedent to qualify for Medi-
Cal, which it did. There is no suggestion of undue influence in
the facts established by the evidence.
13
Appellant cites Family Code section 1100, subdivision (b),
which provides that a spouse “may not make a gift of community
personal property, or dispose of community personal property for
less than fair and reasonable value, without the written consent
of the other spouse.” Appellant asserts that there is no evidence
of compliance with Family Code section 1100, subdivision (b) with
respect to the money transferred into the trust or the elimination
of appellant’s status as beneficiary of the life insurance policy.
Appellant apparently takes the position that these transactions
constituted gifts to respondents. Again, appellant did not raise
this theory in her petition or at any time prior to summary
judgment. Further, there is no evidence to suggest that any of
the transactions violated this section. Appellant provided her
written consent for the replacement of the beneficiary on the life
insurance policy, and she participated in the creation of the trust,
which was for her benefit. There is no evidence that it was
created as a gift to respondents.
Appellant argues that the trial court implicitly considered
appellant’s mental state while refusing to consider her incapacity
to agree to the funding of the trust and the change of beneficiary
on the insurance policy. Appellant points out that the trial court
stated in its written minute order: “The documentary evidence
uniformly contradicts [appellant’s] allegations and her own
written responses show that she is ‘not aware’ or does not recall
the circumstances surrounding the creation and funding of the
trust.” Thus, appellant argues, while the trial court observed
that appellant was not aware or could not recall these
transactions, such conditions are consistent with her present
assertions of mental incapacity and undue influence.
14
Appellant never alleged that she had an impaired mental
state at the time of the transactions in question or was the victim
of undue influence. Nor did she request leave to file an amended
petition at any time leading up to the filing of respondents’
motion for summary judgment. The trial court noted that
appellant was unable to provide evidence in this matter due to
her inability to recall. Her present incapacity does not cure the
absence of such allegations from the petition, nor does it require
the court to assume that she lacked capacity at the time the
transactions took place.
IV. The court properly found that appellant’s expert
evidence raised for the first time in opposition to
summary judgment did not create a triable issue of
fact
Appellant next asserts that the trial court improperly
declined to find a triable issue of fact based on the expert opinion
evidence submitted by appellant’s expert, Dr. Mervis.
The trial court found that respondents correctly argued
that expert opinions acquired after the fact to oppose a motion for
summary judgment do not create a triable issue of material fact.
The court cited Serri v. Santa Clara University (2014) 226
Cal.App.4th 830 (Serri) in support of this decision, quoting the
opinion for the general proposition that “expert opinions acquired
after the fact to oppose a motion for summary judgment do not
create a triable issue of material fact.” Appellant argues that the
trial court misinterpreted Serri, broadly construing the case to
dismiss all expert evidence acquired after the events forming the
basis of the litigation.
We agree with appellant that the Serri decision does not
rule out the relevance of all expert testimony based on the date of
15
its acquisition. In Serri, an individual brought an action against
her former employer (the University) and others for wrongful
discharge based on race and ethnic origin, among other claims.
(Serri, supra, 226 Cal.App.4th at p. 837.) The University moved
for summary judgment or summary adjudication on all her
causes of action. (Ibid.) The trial court granted summary
judgment in favor of the University. On appeal, the court was
asked “to determine whether an employee who is terminated for
failing to perform an important job function can avoid summary
judgment by arguing, based on expert evidence obtained for the
purpose of opposing a motion for summary judgment or summary
adjudication, years after the employee’s termination, that the
failure to perform did not and would not result in any adverse
consequences to the employer.” (Id. at p. 838.) Under those
circumstances, the Serri court found that the “after-acquired
expert evidence that there were no adverse consequences from an
employee’s failure to perform does not create a triable issue of
fact on the question whether the employee failed to perform his
or her job duties and thus has limited relevance, if any, to the
question of discrimination.” (Ibid.) Specifically, the evidence was
not relevant to the issues in the case—“whether the University’s
stated reasons for terminating [the employee] were untrue or
pretextual such that a reasonable trier of fact could conclude that
the employer engaged in discrimination.” (Ibid.)
Thus, the Serri court analyzed the expert evidence and
considered whether such evidence was relevant to the issues in
the case and whether it served to create a triable issue of
material fact on such issues. We conduct the same analysis as to
the expert evidence at issue here.
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Dr. Mervis’s declaration is not relevant to any issues in the
case because appellant did not raise the issue of her mental
health or undue influence at any time prior to the filing of
respondents’ motion for summary judgment. As set forth above,
new theories may not be raised for the first time in opposition to
summary judgment. (Distefano, supra, 85 Cal.App.4th at
p. 1264.) As in Serri, the expert opinion offered in opposition to
summary judgment is not relevant to the issues in the case.
(Serri, supra, 226 Cal.App.4th at p. 838.)
V. Leave to amend or supplement the petition was
properly denied
Appellant asserts that on a first demurrer, it is an abuse of
discretion to deny a party leave to amend. (Citing Kolani v.
Gluska (1998) 64 Cal.App.4th 402, 412; McDonald v. Superior
Court (1986) 180 Cal.App.3d 297, 303-304.) Both cases appellant
cites in support of her claim that she should have been granted
leave to amend involve demurrers, not summary judgment
proceedings. As this matter was decided on summary judgment,
the cases are unhelpful to appellant.
Parties are not permitted to change their theory in
opposition to summary judgment. “The complaint is supposed to
set forth the plaintiff’s proposed case, which the defendant’s
summary adjudication motion then aims to test as a matter of
law. But if the plaintiff’s opposition moves the factual target
after the defendant has fired off its motion, this unfair tactic
defeats the utility of the procedure.” (Cohen v. Kabbalah Centre
Internat., Inc. (2019) 35 Cal.App.5th 13, 18.) For this reason,
opposition evidence must be directed to issues raised by the
pleadings. (Distefano, supra, 85 Cal.App.4th at p. 1264.) If the
opposing party wants to present a theory or claim not yet
17
pleaded, that party should seek leave to amend before the
hearings on the summary judgment motion. (Id. at pp. 1264-
1265.) Appellant did not do so.
Appellant relies on FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367 (FPI) for the proposition that she
should be permitted to supplement her petition through her
separate statement in opposition to summary judgment. We note
that the FPI court affirmed summary judgment for the plaintiff
in spite of the defendants’ attempt to assert new theories in
opposition to summary judgment. (Id. at pp. 402-403.) In doing
so, the FPI court allowed that “some defects in the pleading of an
ultimate fact may be remedied by resort to a factual showing in
the summary judgment proceeding. In this manner the pleadings
may be read together with the factual showings in the summary
judgment proceeding for purposes of discerning what is in issue.”
(Id. at p. 382.) However, the FPI court acknowledged that “the
doctrine of theory of trial permits a variance in proof, the scope of
which is ordinarily dependent upon what is pled.” (Id. at p. 385.)
In other words, even allowing for variance from the pleadings,
the pleading must “minimally advise the opposing party of the
nature of the defense even if defective as conclusory.” (Ibid.)
Only “[i]f the allegations . . . gave notice to the plaintiffs of a
potentially meritorious [claim or] defense, [the appealing party
is] likewise entitled to reversal of the summary judgment.”
(Ibid.) If the appealing party fails this test, we must affirm the
judgment. (Ibid.)
Appellant’s pleading did not give notice to respondents that
she was putting her mental capacity at the time of the
transactions at issue. Nor did the pleading give respondents
notice that appellant was claiming undue influence. We conclude
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that the trial court did not err in declining to permit appellant
leave to amend or allow appellant’s separate statement to
supplement her pleading.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs of appeal.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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