Opinion
G061532
10-18-2023
HALEY KOWALSKI et al., Plaintiffs and Respondents, v. LUCILLE KOWALSKI, Defendant and Appellant.
Mims, Kaplan, Burns &Garretson and Robert H. Garretson; John L. Dodd &Associates and John L. Dodd for Defendant and Appellant. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Howard Brief for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
Order Filed Date 11/16/23
Appeal from a judgment and postjudgment order of the Superior Court of Orange County, No. 30-2018-00981063 Kimberly A. Knill, Judge. Affirmed.
Mims, Kaplan, Burns &Garretson and Robert H. Garretson; John L. Dodd &Associates and John L. Dodd for Defendant and Appellant.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Howard Brief for Plaintiffs and Respondents.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
This court hereby orders that the opinion filed on October 18, 2023, be modified as follows:
1. On page 14, last incomplete paragraph, add the following citation, so it reads: To prevail under either theory, Lucille must first establish the community has an interest in the Costa Mesa property. (See California Consumer Health Care Council, Inc. v. Department of Managed Health Care (2008) 161 Cal.App.4th 684, 691 ["To prove a constitutional due process violation, a plaintiff must first establish that due process protections are applicable by showing a protected liberty or property interest"].)
2. On page 15, second full paragraph, add the following footnote, after the third complete sentence: In her petition for rehearing, Lucille contends we improperly considered this 2012 grant deed because it was not introduced at trial and was only submitted during posttrial briefing. But, as set forth above, this grant deed was submitted in response to the court's request for supplemental briefing on whether "all or part of the [Costa Mesa] property [was] community property before the 2016 transfer to decedent and [Lucille] as husband and wife." Thus, we can infer the court considered it before finding the community had no interest in the Costa Mesa property. Nor does it appear that Lucille ever objected to this evidence. Her citation to Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 815, is also unpersuasive. In Frank, the parties on appeal cited exhibits attached to posttrial motions in addressing issues that were decided at trial. (Id. at pp. 814-815.) Thus, the court could not have relied on them when determining liability at trial. Here, however, the relevant exhibits were responsive to issues Lucille asked the court to address after trial, i.e., whether the community had any interest in the Costa Mesa property.
This modification does not change the judgment.
The petition for rehearing is DENIED.
OPINION
MOORE, J.
Decedent James Kowalski's (decedent) first marriage produced two children before ending in divorce in 1976. He remained single for 20 years until he married defendant Lucille Kowalski in 1997. Between his marriages, he acquired several properties, including a triplex in Costa Mesa (the Costa Mesa property). Decedent told multiple people in the years before his death that he intended to give the Costa Mesa property to his children and grandchildren from his first marriage. And he established a separate trust to hold the Costa Mesa property for this purpose. However, about a year before he died, decedent and Lucille created a joint trust (the Tran Kowalski Trust) to hold their combined property, including the Costa Mesa property. After decedent passed in 2017, Lucille inherited all the property in the Tran Kowalski Trust.
We refer to the members of the Kowalski family by their first name to avoid confusion.
Plaintiffs are decedent's daughter, Kelli Kowalski, and two of his grandchildren, Brandon Kowalski and Haley Kowalski (collectively, petitioners). They filed a petition to invalidate the transfer of the Costa Mesa property to the Tran Kowalski Trust. They alleged this transfer was the product of Lucille's undue influence. The case went to trial, and the trial court agreed with petitioners. It imposed a constructive trust over the Costa Mesa property and ordered Lucille to convey it to them.
Lucille appeals the ruling on four grounds. First, she argues the court improperly applied an undue influence presumption because she did not unduly benefit from the transfer. We disagree. The court's finding that she unduly benefitted is supported by substantial evidence. Second, Lucille contends petitioners did not request the ordered relief in their petition. Even if this is true, there was ample evidence at trial that decedent wanted to leave the Costa Mesa property to petitioners. The court could fashion a remedy to correct Lucille's wrongful procurement of it. (See American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 883 (American Motorists).) Third, Lucille claims the court improperly divested her of her community property interest in the Costa Mesa property. But the court found the community had no interest, and this finding is supported by the record. Finally, though Lucille asserts the court's ruling was driven by stereotypes and gender bias, she fails to cite any persuasive evidence of this.
For these reasons, we affirm the judgment and postjudgment order.
I
FACTS AND PROCEDURAL HISTORY
A. Background
Decedent separated from his first wife in 1972, and they divorced in 1976. Their marriage produced two children: Kelli Kowalski (now Erspamer) and James A. Kowalski, Jr. (James Jr.). Decedent remained single for two decades after their divorce.
Decedent met Lucille in the 1990s. She was a student in a community college class he taught. They began dating after the class ended and married in 1997, three and a half years after they met. At the time of their marriage, Lucille was 23 years old, and decedent was in his early 50s. She had no assets, and she signed a prenuptial agreement prior to their wedding. Decedent and Lucille had no children together.
Between his two marriages, decedent acquired several properties, including a single-family residence in Corona Del Mar (the Corona Del Mar property) and the Costa Mesa property. The Corona Del Mar property was decedent's primary home before he met Lucille, and it became their primary home after marriage. At the time of trial, though, Lucille was renting it out for $6,700 a month. The Costa Mesa property was always a rental property that netted $6,100 per month in rent and was valued at $1.5 million at the time of trial.
In 2010, decedent used the Costa Mesa property to fund the James A. Kowalski Trust of 2010 (the 2010 Kowalski Trust). Under the 2010 Kowalski Trust, upon decedent's death, 50 percent of the Costa Mesa property would go to Kelli and 50 percent would go to James Jr.
James Jr. died in February 2015, predeceasing decedent. He was survived by his children, Brandon and Haley (i.e., decedent's grandchildren), and his wife, Sheri Kowalski. Shortly after James Jr.'s death, decedent created the James Allen Trust (the 2015 Kowalski Trust), and transferred the Costa Mesa property into it. Decedent was trustee of the 2015 Kowalski Trust, and Lucille was successor trustee upon his death or incompetency. The 2015 Kowalski Trust distributed the Costa Mesa property to Kelli, Sheri, Brandon, and Haley upon decedent's death. Decedent later amended the 2015 Kowalski Trust to distribute the Costa Mesa property evenly among Kelli, Natalie Lebeda (Kelli's daughter), Brandon, and Haley.
In September 2016, decedent created the James A. Trust (the 2016 Kowalski Trust). The 2016 Kowalski Trust distributed the Costa Mesa property to Kelli (55%), Natalie (15%), Brandon (15%), and Haley (15%), and it gave Lucille a right of first refusal if the Costa Mesa property was sold. However, the Costa Mesa property was never transferred into the 2016 Kowalski Trust.
The same day the 2016 Kowalski Trust was created, decedent and Lucille formed the Tran Kowalski Trust. All of decedent and Lucille's assets, including the Costa Mesa property, were transferred into the Tran Kowalski Trust. The trust's assets all passed to the surviving spouse upon the other's death.
In total, seven real properties were transferred into the Tran Kowalski Trust: the Costa Mesa property, the Corona Del Mar property, and several properties in Westminster and Moreno Valley. As to the Costa Mesa property, decedent executed a grant deed in November 2016, transferring it from the 2015 Kowalski Trust to decedent and Lucille as joint tenants (the joint tenant grant deed). The same day, decedent and Lucille executed another grant deed transferring the Costa Mesa property from themselves as joint tenants to the Tran Kowalski Trust (the Tran Kowalski Trust grant deed).
Although these two grant deeds were executed on the same day, the grant deed transferring the Costa Mesa property to decedent and Lucille as joint tenants was recorded on November 22, 2016, and the grant deed transferring it to the Tran Kowalski Trust was recorded on December 2, 2016.
Decedent passed away in October 2017. He had numerous health problems in the years before his death. He was hospitalized four times in 2014 for, among other things, perforated bowel surgery, sepsis, and a colostomy reversal. He was again hospitalized in May 2016, because he was coughing up blood. During a trip to Michigan in July 2017, he was hospitalized for a week for disorientation and confusion. Then, around September 2017, decedent was diagnosed with stage four lung cancer. There is also evidence in the record that decedent's cognitive health began declining around 2013 or 2014.
B. The Lawsuit
After decedent's death, petitioners learned the Costa Mesa property had been transferred to Lucille. They filed a petition to invalidate the transfer. The operative second amended petition (the petition) was filed in January 2019. Primarily, petitioners alleged the transfer of the Costa Mesa property to the Tran Kowalski Trust was the product of Lucille's undue influence.
Prior to trial, the parties submitted a joint list of controverted issues for the court to determine. Among other things, they sought a determination as to whether the transfer of the Costa Mesa property to the Tran Kowalski Trust was invalid. If so, petitioners contended it should be confirmed as an asset of the 2016 Kowalski Trust. They also asked the court to determine whether Lucille was unjustly enriched by the Costa Mesa property due to undue influence or other wrongful acts.
Following trial, the court requested supplemental briefing. If the ruling were in favor of petitioners, the court sought input as to how it should transfer the Costa Mesa property to either the 2015 or 2016 Kowalski Trust and ensure that Lucille was not liable for the outstanding mortgage.
In her supplemental brief, Lucille claimed a portion of the Costa Mesa property was community property because community assets had been spent on its mortgage, maintenance, and renovation. (Citing In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 436.) She asked the court to determine the community's interest in the Costa Mesa property, then transfer decedent's share of it to petitioners through whichever trust the court deemed proper. Petitioners objected to Lucille's community property claim. They maintained the Costa Mesa property was decedent's separate property.
The court then issued another order seeking briefing on two issues: "(1) was all or part of the [Costa Mesa] property community property before the 2016 transfer to decedent and [Lucille] as husband and wife?"; and "(2) if yes, in the event the court determines petitioners are entitled to an order transferring the property to them, how should the court divide the property now?"
Petitioners asserted the Costa Mesa property was entirely decedent's separate property because he had purchased it prior to marrying Lucille. They also maintained that Lucille knew and intended for the Costa Mesa property to remain decedent's separate property after their marriage. As support, they cited an interspousal grant deed signed by Lucille in 2012, in which she granted the Costa Mesa property to decedent as "a married man as his sole and separate property." They also quoted other language from the interspousal deed, which stated, "'[i]t is the express intent of the Grantor [(Lucille)], being the spouse of the Grantee [(decedent)], to convey all right, title and interest of the Grantor, community or otherwise, in and to [the Costa Mesa] property to the Grantee as his sole and separate property.'"
Lucille's brief repeated her argument that the community had spent funds on the Costa Mesa property and, accordingly, acquired an interest in it. She also maintained that the timing and size of the community's interest would require a separate trial because the issue was not raised in the petition or at trial.
C. Judgment and Statement of Decision
The court issued a statement of decision after receiving the parties' briefs. The court found petitioners' evidence raised a presumption of undue influence, which Lucille had failed to rebut. Based on the evidence, it concluded that "Lucille exerted undue influence over [decedent] beginning approximately 2016 and continuing thereafter." Thus, decedent's transfer of the Costa Mesa property out of the 2015 Kowalski Trust and into the Tran Kowalski Trust was void, and the Costa Mesa property remained an asset of the 2015 Kowalski Trust.
In support of its ruling, the court highlighted decedent's various health issues mentioned above. It also found that "as early as 2014, [decedent] was starting to experience cognitive decline, such as confusion and problems with recall.... The cognitive decline worsened over time." The court also cited testimony from various witnesses that decedent intended to transfer the Costa Mesa property to his children and grandchildren. As to Lucille's testimony, the court concluded it was "lacking in credibility and inconsistent, and thus unreliable ....While . . . there was some truth to her testimony, she was evasive at times and overall presented as manipulative with a well-thought-out plan."
Finally, the court found Lucille had no community property interest in the Costa Mesa property prior to the joint tenant grant deed. It explained she had not provided any documentary evidence to support her assertion that community funds had been spent on the Costa Mesa property.
Lucille objected to the statement of decision. Among other things, she claimed it (1) provided relief that was not sought in the petition; and (2) did not resolve the community property issues. The court overruled her objections. It explained, "[i]t is clear the parties were on notice of, and actually litigated, the primary issue in the case, i.e., whether or not [Lucille] is entitled to the [Costa Mesa property] .... The court has made factual findings, . . . all on the issue of whether [Lucille] is entitled to the [Costa Mesa property]. The court has the authority to grant all legally appropriate relief within the context of issues actually litigated by the parties. [Citation.] Moreover, the probate court has power to apply equitable principles in aid of its function."
The court then entered judgment against Lucille. It imposed a constructive trust over the Costa Mesa property. And it ordered Lucille, as successor trustee of the 2015 Kowalski Trust, to execute a deed conveying the Costa Mesa property to petitioners. It also ordered petitioners to pay off the existing mortgage concurrently with the transfer of title.
Lucille then moved for a new trial, largely repeating the arguments from her objections to the statement of decision. Her motion was denied.
Lucille appeals the judgment and the order denying her new trial motion. She makes four arguments. First, the court erred by applying the presumption of undue influence. Second, the court's remedy is outside the scope of the petition. Third, her community property interest in the Costa Mesa property was taken without due process. Fourth, the court's ruling was rooted in stereotypes and gender bias.
II
DISCUSSION
A. Undue Influence
"[A] testamentary document may be set aside if procured by undue influence." (David v. Hermann (2005) 129 Cal.App.4th 672, 684; see, e.g., In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 993, 999-1000 [setting aside grant deed].) "Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator's free will, amounting in effect to coercion destroying the testator's free agency." (Rice v. Clark (2002) 28 Cal.4th 89, 96.)
"Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence . . . a presumption of undue influence . . . arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument." (Rice v. Clark, supra, 28 Cal.4th at pp. 96-97.) If the presumption is raised, the burden shifts to the benefitted person to show the transfer was not the product of undue influence. (In re Marriage of Delaney, supra, 111 Cal.App.4th at pp. 999-1000.)
The court found petitioners had established all three elements of this presumption. Lucille does not contest its findings as to the first two elements. She only contends there is insufficient evidence to support the court's finding that she unduly benefitted from the Costa Mesa property's transfer to the Tran Kowalski Trust. (See Estate of Gelonese (1974) 36 Cal.App.3d 854, 863 [applying substantial evidence standard in determining whether a presumption had been established].) We disagree.
Determining whether a beneficiary unduly benefitted from a transfer involves "a qualitative assessment of the evidence, not a quantitative one. 'To determine if the beneficiary's profit is "undue" the trier must necessarily decide what profit would be "due." These determinations cannot be made in an evidentiary vacuum.'" (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1060-1061, disapproved of on other grounds by Bernard v. Foley (2006) 39 Cal.4th 794, 803.) The trier of fact must review the evidence and determine whether the contesting party or the beneficiary was "'the more obvious object of the decedent's testamentary disposition.'" (Conservatorship of Davidson, at pp. 1060-1061.)
Here, the trial court explained Lucille unduly benefitted because she obtained the Costa Mesa property "to the exclusion of [decedent's] children and grandchildren from his first marriage." After decedent's death, "Lucille received not only the Corona Del Mar property and [the Costa Mesa property], but also several other properties . . . that were also bought during the marriage. In the end, Lucille received millions in real property, and [decedent's] children and grandchildren from his first marriage received nothing. [T]here [was] zero evidence [decedent] intended this result at any time during his life."
It is undisputed that Lucille received all of decedent's property interests -whether separate or community - and petitioners received nothing. The record supports the court's conclusion that decedent did not intend this. Rather, he wanted to give his surviving daughter and grandchildren the Costa Mesa property:
• Ken Hutchins was decedent's friend and saw him weekly. He testified that a month before decedent's death, decedent said he was giving Kelli (his daughter) the Costa Mesa property.
• Dennis Griffon, decedent's first cousin, recalled that after James Jr.'s death, decedent stated the Costa Mesa property would go to Kelli and his grandchildren.
• Linda Griffon, decedent's first cousin and Dennis Griffon's sister, testified that decedent "constantly" said the Costa Mesa property would go to Kelli and his grandchildren and the Corona Del Mar property would go to Lucille.
• Linda Bicksler, decedent's younger sister, recalled that decedent told her before and after James Jr.'s death that he was leaving the Costa Mesa property to his children and grandchildren.
• John Kowalski, decedent's older brother, testified that decedent said numerous times that Lucille would get the Corona Del Mar property and bank accounts and the Costa Mesa property would go to his children and grandchildren.
• Haley remembered having lunch with decedent (her grandfather) in May of 2017 with her brother, Brandon, and their mother, Sheri. During lunch, decedent told them he was leaving the Costa Mesa property to her, Brandon, and Kelli (Haley's aunt). Brandon gave the same testimony, as did Sheri.
• Kelli recalled that decedent (her father) told her in February 2017 that he was leaving the Costa Mesa property to her, Brandon, and Haley and the Corona Del Mar property to Lucille.
The above evidence establishes that decedent sought to leave all his assets to Lucille except the Costa Mesa property, which he intended to give to his daughter and grandchildren. The transfer of the Costa Mesa property to Lucille gave her more than she was "due." Thus, the record supports the court's conclusion that Lucille unduly benefitted by inheriting the Costa Mesa property. (See Conservatorship of Davidson, supra, 113 Cal.App.4th at pp. 1060-1061.)
Lucille argues there is insufficient evidence she unduly benefitted because (1) she has a community interest in the Costa Mesa property, (2) she and decedent were married for nearly 20 years and she cared for him during his poor health, and (3) she also placed her separate property into the Tran Kowalski Trust.
But Lucille misunderstands the nature of substantial evidence review. "'Our review is limited to a determination whether there is any substantial evidence, contradicted or uncontradicted, that supports the finding.'" (In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1472.) We do "not reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) "'If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.'" (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143, italics omitted.) Since the court's finding that Lucille unduly benefitted is supported by substantial evidence, we do not consider whether the court could have reached a different conclusion by relying on other evidence.
Because the court did not err in applying the presumption, we do not address Lucille's arguments that (1) shifting the burden of proof was a prejudicial error, or (2) absent the presumption, there is insufficient evidence to support an undue influence finding under Welfare and Institutions Code section 15610.70, subdivision (a).
B. Relief Outside the Pleadings
The petition requested an order placing the Costa Mesa property in the 2016 Kowalski Trust. Lucille contends the court granted relief in excess of the petition by confirming the Costa Mesa property as an asset of the 2015 Kowalski Trust and imposing a constructive trust over it. She claims the petition never requested a constructive trust, nor was this issue litigated. She also asserts the petition did not seek any relief concerning the 2015 Kowalski Trust, nor did it seek to invalidate the joint tenant grant deed. We find no error.
Lucille's arguments raise legal issues, which we review de novo. (See Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)
Generally, "a party must recover on the cause of action alleged in the complaint and not on a separate and distinct cause of action disclosed by the evidence." (People v. Toomey (1985) 157 Cal.App.3d 1, 11.) However, "it is fundamental that after trial on the merits, the court may afford any form of relief supported by the evidence and as to which the parties were on notice, whether requested in the pleadings or not." (American Motorists, supra, 127 Cal.App.3d at p. 883; Toomey, at p. 11 [even a material variance between the pleadings and evidence introduced at trial "will be disregarded if the new matter was received and the action fully and fairly tried on the merits"].)
Here, the relief provided by the court arose from the issues litigated at trial. Two of the issues from the joint list of controverted issues are relevant. First, "[p]etitioners contend that the transfer of the [Costa Mesa property] into the [Tran Kowalski Trust] was invalid and should be nullified and rescinded and that the property should be confirmed as an asset of the [2016 Kowalski Trust]." Second, "[p]etitioners contend that Lucille Kowalski has been unjustly enriched by . . . undue influence . . . or other wrongful act[s] and as such, the specific and stated intent of [decedent] as to the disposition of the [Costa Mesa property] has been totally disregarded unlawfully and without his specific knowledge."
These two issues provided notice that petitioners claimed the Costa Mesa property was wrongly transferred to Lucille and should have been transferred to them. As the trial court stated, "[i]t is clear the parties were on notice of, and actually litigated, the primary issue in this case, i.e., whether or not [Lucille] is entitled to the [Costa Mesa property]." Further, as set forth above, this issue was litigated. There was ample evidence at trial that decedent intended to leave the Costa Mesa property to petitioners, not Lucille. Thus, the court could fashion a remedy supported by this evidence. (American Motorists, supra, 127 Cal.App.3d at p. 883.) And it did that. It invalidated the joint tenant grant deed, confirmed the Costa Mesa property as an asset of the 2015 Kowalski Trust, and imposed a constructive trust to compel Lucille to transfer petitioners the property. This relief was all based on the evidence showing decedent intended to give the Costa Mesa property to petitioners.
Lucille also had notice of the specific relief granted. As to the imposition of a constructive trust, the petition requested "a Constructive Trust of the [2016 Kowalski Trust]." While the petition sought this relief based on the 2016 Kowalski Trust, not the 2015 Kowalski Trust, it provided Lucille notice that petitioners sought a constructive trust as a potential remedy. Further, Civil Code section 2224 states a person who obtains a thing by undue influence is "an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it." Thus, Lucille had notice that a constructive trust could be imposed if she unduly influenced decedent to transfer the Costa Mesa property to her.
Likewise, the court's invalidation of the joint tenant grant deed directly arose from its finding that Lucille obtained the Costa Mesa property through undue influence. Lucille had notice of this relief, as the entire thrust of the proceeding was that the Costa Mesa property should never have been transferred to her and should have been transferred to petitioners. Thus, any deed or testamentary instruments used to transfer the Costa Mesa property to her could be invalidated.
Lucille also had notice prior to trial that the Costa Mesa property could be declared an asset of the 2015 Kowalski Trust rather than the 2016 Kowalski Trust. Petitioners' trial brief sought an order transferring the Costa Mesa property to the 2016 Kowalski Trust or "[a]n order transferring the property back to its original location in the [2015 Kowalski Trust]."
Finally, Lucille contends the relief conflicts with a prior demurrer ruling. But she has not adequately explained how. Besides, nothing in the cited order expressly curtails the court's power to issue a remedy supported by the evidence at trial. (See American Motorists, supra, 127 Cal.App.3d at p. 883.)
C. Community Property
Lucille makes two related arguments. First, the petition failed to notify her that petitioners sought to divest her of her community property interest in the Costa Mesa property. Second, her community property interest was taken without due process.
To prevail under either theory, Lucille must first establish the community has an interest in the Costa Mesa property. The court found it did not, and we conclude this finding is supported by the record. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 316 [court's factual findings concerning characterization of property are reviewed for substantial evidence].)
It is undisputed that decedent acquired the Costa Mesa property prior to marrying Lucille. Property acquired prior to marriage is separate property. (In re Marriage of Mohler (2020) 47 Cal.App.5th 788, 791.) However, the community may obtain an interest in separate real property if community funds are used to pay its mortgage or make capital improvements. (In re Marriage of Allen (2002) 96 Cal.App.4th 497, 501-502.) Lucille contends $60,000 in community funds were used to renovate the Costa Mesa property and that community funds were used to make some mortgage payments.
However, the only evidence in the record supporting these contentions is Lucille's testimony, which the court found unreliable. As the court noted, she provided no documents showing the community had expended any relevant funds on the Costa Mesa property. Further, the record contains an interspousal grant deed signed in 2012 in which Lucille granted the Costa Mesa property to decedent "as his sole and separate property." (Capitalization omitted.) Similarly, the 2015 grant deed transferring the Costa Mesa property into the 2015 Kowalski Trust states the Costa Mesa property was decedent's "sole and separate property." Thus, Lucille has not shown the court's characterization of the Costa Mesa property as decedent's separate property is unsupported by the record.
Lucille also appears to argue she did not have to introduce evidence of the community's interest in the Costa Mesa property because it was never at issue. We disagree. The petition alleged the Costa Mesa property was decedent's separate property. For instance, it alleged decedent "always saw the [Costa Mesa property] as his sole and separate property and intended for it to be left to his children only." Likewise, it asserted that decedent told Kelli "that prior to marrying Lucille . . . he was making Lucille . . . sign a prenuptial [agreement] to ensure that Kelli . . . and her brother [(James Jr.)] received . . . all of [the Costa Mesa property]. After his wedding, [decedent] reiterated that Lucille . . . signed the prenuptial agreement."
Lucille did not contest petitioners' separate property allegations until her closing argument and her posttrial briefs. Despite her belated challenge, the court allowed her to provide supplemental briefing as to whether "all or a part of the [Costa Mesa property was] community property." Thus, the community's interest in the Costa Mesa property was clearly at issue prior to the judgment, and Lucille was given an opportunity to present evidence supporting her position.
D. Bias
Finally, Lucille contends the court's ruling was improperly motivated by stereotypes and gender discrimination. However, this argument is based on perceived slights rather than anything of substance.
Lucille's argument arises from a portion of the order, stating, "[t]he evidence shows Lucille brought zero in assets to her marriage with [decedent], who obtained a prenuptial agreement. After his death, Lucille received not only the Corona Del Mar home and [Costa Mesa property], but also several other properties the court has not addressed that were also bought during the marriage. In the end, Lucille received millions in real property, and [decedent's] children and grandchildren from his first marriage received nothing. Other than Lucille's convoluted explanations of how and why this occurred, which the court rejects, there is zero evidence [decedent] intended this result at any time during his life. Hence, Lucille has not produced sufficient evidence to overcome the presumption of undue influence."
First, Lucille takes issue with the court's suggestion that she brought "'nothing of value' to this marriage." But the court never said this. Rather, it said, Lucille "brought zero in assets to her marriage," which was based on Lucille's trial testimony:
"Q: At the time that you were living at home [prior to marriage], did you own any property?
"A: No.
"Q: All the property that you've accumulated thus far has come after marriage to [decedent]; correct?
"A: Correct."
Next, Lucille focuses on the court's finding that she "received millions in real property." She argues this finding is unsupported by the record, and she believes the court insinuated that she did not deserve this property. She maintains it was natural for decedent to leave it to her given their nearly 20-year marriage.
As to her initial point, Lucille has not explained how it relates to her overall argument that the court's order was driven by stereotypes or sexism. Regardless, the finding is supported by the record. Lucille testified the Corona Del Mar and Costa Mesa properties were worth $1.5 million each. Thus, she inherited at least $3 million of real property plus the value of the five properties in Moreno Valley and Westminster.
Lucille also misunderstands the court's discussion of the property she received. The court was not suggesting that she undeservedly received millions of dollars of property. Rather, it was emphasizing the stark difference in what Lucille and petitioners received from decedent. Lucille got everything - millions of dollars of property - while decedent's surviving child and grandchildren got zero. As the court pointed out, nothing in the record indicates decedent intended to completely disinherit his children and grandchildren. Thus, as we read it, the court highlighted the amount of property Lucille received to illustrate the reasons for its undue influence finding.
III
DISPOSITION
The judgment and postjudgment order denying Lucille's new trial motion are affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: O'LEARY, P. J. MOTOIKE, J.