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Buck v. Buck

Aug 9, 2017
G053279 (Cal. Ct. App. Aug. 9, 2017)




ALAN M. BUCK, Plaintiff and Appellant, v. CHRISTINA BUCK, as Trustee, etc., Defendant and Respondent.

Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Plaintiff and Appellant. Rutan & Tucker, Theodore I. Wallace, Lisa N. Neal, and Gerard M. Mooney for Defendant and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00669654) OPINION Appeal from a judgment of the Superior Court of Orange County, Kim R. Hubbard, Judge. Affirmed. Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Plaintiff and Appellant. Rutan & Tucker, Theodore I. Wallace, Lisa N. Neal, and Gerard M. Mooney for Defendant and Respondent.

In 1997, Gerald E. and Bente Buck created the Buck Family Trust (Trust) funded by approximately $81 million in assets. Initially, the primary beneficiaries were their two children, Alan M. Buck and Christina Buck. After Gerald's and Bente's deaths, Alan discovered he had been disinherited and filed a petition to invalidate amendments to the Trust that removed him as beneficiary. Christina, as trustee of the Trust, denied Alan's allegations of undue influence and she prevailed in a court trial. On appeal, Alan argues the court "wrongfully hobbled" his ability to present a case by making several pretrial rulings. Specifically, Alan asserts the court erred in permitting his counsel to withdraw two months before the original trial date, by cancelling several depositions, and in denying his application to designate expert witnesses. We conclude Alan's contentions lack merit, and we affirm the judgment.

For the sake of clarity, we will refer to the parties by their first names. No disrespect is intended.


The gravamen of Alan's appeal concerns the merits of several pretrial rulings. Therefore, we will limit this factual summary to describing the events leading up to the underlying action. For reasons of efficiency, the procedural facts relating to each pretrial ruling will be discussed in the same section as our separate analysis of each of those challenged rulings.

Gerald and Bente were married for over 50 years and owned a home in Emerald Bay. Alan and Christina were born in 1964, and 1967, respectively. Both Alan and Christina agreed Gerald was not a particularly doting father and he focused his time and energy on earning money as a land developer and collecting expensive artwork.

Gerald and Bente created an estate plan with the assistance of their attorney, Ernie M. Ellsworth. In 1997, Gerald and Bente executed a joint revocable trust, which they amended in 2002. In both versions, the Trust provided the estate was to be divided equally between Alan and Christina.

Specifically, the Trust provided for the creation of three separate trusts following the death of the first spouse. The trust assets would be transferred to an "Administrative Trust" for an accounting and then divided into the following three sub-trusts: (1) a Survivor's Trust; (2) a Credit Shelter Trust (also called By-pass Trust); and (3) a Marital Trust (also called Q-TIP Trust). The Survivor's Trust, a revocable and amendable trust, included the surviving spouse's separate property and one-half of the community property. The Credit Shelter Trust was irrevocable and designed to hold the estate tax exemption amount. The balance of the estate went to the irrevocable Marital Trust. The Trust provided the surviving spouse would act as the trustee of the three sub-trusts.

With respect to the Marital Trust and Credit Trust, on the first death, these trusts became irrevocable and could not "be altered, amended, or terminated in any respect except to the extent such power is expressly conferred by the terms of the trust, or as otherwise expressly permitted by law." The surviving spouse could make distributions of income and principal under certain conditions. Relevant to this appeal, the Trust also conferred to the survivor the power of appointment in favor of a limited group of people (including children and grandchildren), permitting the surviving spouse to exercise additional control over the assets. Ellsworth recalled telling Gerald and Bente this provision gave them the power to disinherit a named beneficiary.

Gerald and Bente also created an irrevocable life insurance trust (Insurance Trust), which provided Alan and Christina would evenly share life insurance proceeds ($1.7 million) upon Gerald's death. In this appeal, Alan does not seek any relief regarding this trust. Alan received his share of the life insurance proceeds. He also executed a full release of any claims concerning the Insurance Trust. I. Family Discord

Alan worked in the family business, Hon Development Company, for approximately eight years (from 1989 to 1997). Alan obtained a contractor's license and opened his own business for approximately 10 years. Alan claimed the family completely ostracized him in 2006. He stopped working in 2007 due to health problems, and thereafter, was unable to work full-time. The bank foreclosed on Alan's condominium in June 2007, and he moved in with a childhood friend, Deborah Hon. Hon is Gerald's business partner's daughter.

At the beginning of 2010, Hon arranged a meeting between Gerald and Alan at Mimi's Café to discuss Alan's health problems. Alan asked his father for financial assistance. Gerald became extremely angry when Alan ordered dessert, telling him a sick person should have ordered something healthier. Alan replied he had been through a lot and wanted dessert. Gerald reacted by threatening to take Alan outside and "slug" him. Later, Gerald sent Alan $3,000 with a note telling Alan he loved him and that he was sorry "we last left on a sour note."

At the end of 2011, Hon's father facilitated a second meeting between Gerald and Alan. Hon's father wanted Gerald to help Alan find a place of his own, move out of Hon's home, and get a car. At the meeting, Alan described his debt and asked for financial help. He also expressed hope of reconciling with his family. Alan was upset that for the past several years he had not been invited to his parents' Emerald Bay home or asked to spend holidays with the family. Gerald told Alan, "'You're 40 years old and you needed to take care of yourself and . . . there won't be a family reunion if that's what you are trying to accomplish here.'" Gerald became angry and "stormed out of the house" to calm down outside. However, in the end, Gerald agreed to give Alan $6,000 per month. He paid Alan this monthly gift until his death in 2013.

Gerald and Alan rarely spoke to each other following the 2011 meeting. Matters took a turn for the worse following Bente's death on January 19, 2013. In March 2013, Gerald held a small memorial service on the private beach below his home. Gerald, Christina, Alan, Hon, and Gerald's assistant, Terri Anderson, attended the service. After Gerald gave a memorial speech about Bente, he gave Alan and Christina canisters containing Bente's ashes. Gerald and Christina spread ashes from their canisters into the surf. When Alan did not participate, Gerald walked over and put his arm around Alan. They walked away from the group and began to argue. Christina and Anderson left the beach and sat on a bench in a nearby parking lot. Gerald then left Alan and walked towards the parking lot. Anderson saw Alan was following his father and that Alan looked extremely angry. She heard Alan yelling, "'Aren't I allowed to have feelings?'" Anderson remembered Christina told Alan it was not the right time or place "'for that'" and Alan got angry at Christina and yelled at her too. Christina and Anderson walked away and Gerald later joined them. When Alan approached their group again, he told Gerald he owed him an apology, but then launched into a new round of verbal attacks on Gerald. Gerald, Christina, and Anderson turned away and walked towards the cars. Alan screamed in their direction, "'Shame on you, shame on you.'"

When Gerald returned home later that afternoon, he found Alan's canister of Bente's ashes on his front doorstep. Wrapped around the canister was a typewritten memo and some handwritten pages. The typewritten note was a seven-page long tirade. It was titled, "NOTES ABOUT MOM," followed by several dates and times (3:20 a.m. on January 26, 2013, and 6:01 a.m. March 4, 2013). Alan called the family "dysfunctional" and described his good and bad memories of his mother.

Alan complained his family "without any warning" ostracized him and shut him out of their lives at a time he was attacked on his construction job by an "unknown fungus." Not knowing his illness was caused by a fungus, Alan experienced a great deal of stress and developed post-traumatic stress disorder (PTSD). Because his family had abandoned him, Alan became "nearly catatonic for months" and lost everything. He said Hon saved him from being homeless and helped find him medical care. She was paying to keep his things in storage. He lamented that none of his family members had even asked how he was feeling. Alan described the two meetings he had with Gerald. He was upset Gerald threatened to hit him at the first meeting. He recalled that at the second meeting, Gerald said there would be no family reunion. He complained Gerald had not given him enough money to help "pay my debts." Alan said he was working as a housekeeper and planned to write a book about personality disorders called, "'Why are people so cruel to one another.'"

In the note, Alan discussed his childhood relationship with Bente, explaining he was bullied in elementary school. He said Gerald "deliberately ignored his children and was clearly a workaholic," which meant he likely had a serious mental disorder. He complained Gerald and Bente sent him to doctors who were "complete joke[s]" and incorrectly diagnosed him as needing psychiatric help. "I was determined to be 'crazy' and to be ostracized and left for dead just like the ancient Spartan race who would throw their children off the cliff if they proved unworthy of their parents love." Alan declared he was not "crazy" but suffered from PTSD after being abandoned by his family. "My mother was just as guilty as my father and sister of ostracizing me from my family and their support." Alan stated Gerald and Bente were abused and neglected as children, which explained why they were so unkind to him. He blamed them for his insecurities, lack of job, failure to have a wife and family, and his empty bank account. He speculated Bente died from causes other than her brain tumor and cancer because she was depressed.

Alan wrote Gerald seemed kinder after Bente's death but he questioned if it was "a farce." He stated a good start for Gerald and Christina would be to explain why he was being shunned and to invite him to the Emerald Bay home and their condominium in Mammoth. He closed the letter by discussing at length the many positive behaviors exhibited by "true" parents. He then opined Bente may have unconsciously committed suicide.

In one of the handwritten notes, Alan stated the memorial service "was supposed to be about each of us still alive helping one another in love as a real family should, not dictating, how any of us 'must feel' to please you, dad." He stated he did not need the ashes to remind him Bente was dead but he wanted a lock of her hair. He said he felt badly for Gerald and Christina because rather than answer his simple questions, they resorted to "cruel punishment on this day."

In a second handwritten note, addressed to "Gerald and Christina," Alan explained he composed "these notes to myself as if I were at her funeral [and] speaking in front of her friends." Alan included the notes so Gerald and Christina could see the truth of the matters at hand. He asked, "So why did you punish me so savagely, both of you?" He added, "Mom would not have supported such a cruel punishment on her funeral today. I love you both. I sought only to understand the truth. You[r] actions and harsh words have given me all my answers. Thank You! May God have mercy on your souls for trying to hurt me so savagely! That wasn't love you both did at all. Shame on both of you! Shame on you! P.S. Thanks for the great photos Dad. That was nice [of] you. Thanks you didn't need to yell at me or insult me so badly."

Gerald was hurt and angered by Alan's letters. Nevertheless, he continued to send Alan $6,000 per month. Two months after the memorial service, in May 2013, Gerald learned he had throat cancer. He rejected traditional medical treatment and sought alternative remedies. Ellsworth recalled Gerald looked very ill by mid-July. In August, Gerald traveled to a clinic in Tijuana, where he died alone on August 24, 2013. Alan did not know Gerald was ill. Ellsworth testified Gerald wanted to keep the matter private. In addition, Alan never attempted to contact Gerald after the memorial service. Alan did not see or speak to his father during the five months between Bente's service and Gerald's death. II. Trust Amendments

Approximately two months after the memorial service, and not long after the cancer diagnosis, Gerald asked Ellsworth to amend the Trust. Gerald told Ellsworth he was hurt, disappointed, and upset by Alan's conduct. Gerald asked Ellsworth to help him "remove Alan as a beneficiary of any of the [Trusts] . . . except for the Wayfield Apartments[,]" a tri-plex in Orange. Ellsworth recalled Gerald was "extraordinarily upset with Alan" and recounted the events that occurred at the memorial. Gerald was incensed that his son recommended he seek psychological intervention. When Gerald was not "sympathetic to his suggestions," Alan called him the "world's worst father" and shook his finger at Gerald and Christina, saying, "'Shame on you, shame on you.'" Ellsworth said Gerald also told him about the notes Alan wrapped around Bente's ashes on his doorstep. Gerald was hurt and "livid that Alan would disrespect his mother by such an action."

During this conversation, Gerald stated he wanted to change the beneficiaries in the estate plan. Ellsworth recalled, "He said that he didn't think Alan -- well, he was very upset. And he . . . explained that he had gotten Alan a job at Hon Development and that he had been fired from that job. He seemed like he didn't want to work. And he said, I don't think Alan would be a very good steward of the money I worked so hard for . . . ."

Ellsworth added, "[Gerald] basically said, I just don't think Alan would be a good steward of any further wealth. I love my son, but I think I would be doing him a disservice to give him more money. I would like him to learn to be responsible and get a job, basically." He elaborated, "[Gerald believed] that if Alan didn't have the inheritance that maybe he would grow up and be more responsible. He explained to me that he had been giving Alan several thousand dollars a month for a long period of time, and it didn't seem to change Alan's attitude toward Gerald, and he thought it would be counterproductive to give him any more money." Gerald stated he wanted Alan to receive the Wayfield Apartments because this asset would provide him a "subsistence level of income."

Gerald met with Christina on June 23, 2013, to discuss her becoming the successor trustee on the Insurance Trust. She did not read the Insurance Trust and was unaware she would also become the successor trustee on the Family Trust. She learned this information at the end of July when she met Ellsworth at his office.

Pursuant to Gerald's request, Ellsworth prepared a first amendment to the Survivor's trust, providing a gift of money to The Archives of American Art, a gift of all tangible personal property to Christina, and a gift of the Wayfield Apartments to Alan. The balance of the Survivor's Trust was given to Christina and named her the successor trustee. Ellsworth also prepared an "Exercise of Power of Appointment" (Power of Appointment), appointing all of the assets of the Credit Trust and the Marital Trust to Christina, and expressly directing that Alan not receive any assets from those sub-trusts. On July 22, 2013, Gerald executed these two documents.

Ellsworth testified Christina did not give any input with respect to the disinheritance, and she was not present the day the amendment was signed. Ellsworth met separately with Christina on July 30, 2013, when she signed the trustee-related documents. Christina testified she did not read the Trust and did not receive copies until after Gerald's death.

In early August 2013, Ellsworth asked Gerald about the Insurance Trust, giving Alan half of $1.7 million. Gerald asked if there was some way to take away the insurance payment from Alan and give it to Christina. Ellsworth explained, "He wanted the balance of his estate to be distributed to Christina. . . . He was very proud of her, that she had gotten a college degree and she was very responsible. . . . He felt like she would make an excellent custodian of the wealth, and so that's why he wanted her to have it."

Because the Insurance Trust could not be amended, Gerald asked Ellsworth to prepare a second amendment to the Trust. Gerald did not want Alan to get anything more than the insurance proceeds. Ellsworth prepared a second amendment to the Survivor's Trust. The Second Amendment deleted the Wayfield Apartment gift to Alan. It gifted artwork, an art library, and the Emerald Bay home to several different charitable institutions. Thus, the second amendment also reduced Christina's inheritance by redistributing the Emerald Bay home to a different recipient. On August 8, 2013, Ellsworth e-mailed the amendment to Anderson, who hand delivered the documents to Gerald at his home. Gerald signed the documents in Anderson's presence, and she notarized his signature. III. Christina's Influence

After Bente's death, Christina communicated more frequently with Gerald. In the four months before his death, Gerald received 13 e-mails, eight of which only contained her family photographs. Other e-mails contained requests for money to help with Gerald's grandchildren's school tuition and art classes. Some e-mails discussed Gerald's throat cancer treatment. None of the e-mails discussed Alan or suggested Gerald should amend his estate plan to disinherit Alan. IV. Gerald's Petition & Death

On August 19, 2013, Gerald filed a petition for an order approving modification of the Trust. He sought to delete language naming the successor trustees as Vaughn Mahnke and Evelyn Flanary. Gerald explained he was no longer close to these individuals and his children were more mature since the last trust amendment in 2002. Gerald stated he and Bente planned to amend the Trust, removing the language prohibiting their children from serving as successor trustee, but she unexpectedly died before this could be accomplished. Before the matter was heard, Gerald died of cancer. V. The Aftermath

Alan maintains no one told him Gerald was dying or that he had been disinherited. Ellsworth testified Gerald did not want Alan to know he was sick and he kept the information very private. Christina testified she stopped talking to Alan after Bente's funeral. Alan yelled at her on the telephone and sent long angry text messages. Christina's husband blocked Alan's number. VI. Christina's Supplemental Petitions

Christina, stating she was trustee of the Administrative Trust, filed two supplements to Gerald's Petition. On October 1, 2013, she filed a supplement seeking an order approving the same modification of the Trust her father requested in August 2013. On December 18, 2013, Christina filed a supplement requesting the same trust modification and she added that all Trust beneficiaries filed bond waivers. She noted Alan was not a current beneficiary of the Trust. On May 8, 2014, over Alan's objection, the court granted Ellsworth's request to dismiss the modification petition. VII. Alan's Petition

On December 27, 2013, Alan filed a petition to invalidate the first and second amendments to the Trust and the Power of Appointment. Alan was represented by Neil Erickson, from the law firm Jeffer, Mangels, Butler & Mitchell (JMBM). The petition alleged Christina and Ellsworth worked together to amend the Trust without Alan's knowledge. When Gerald was dying, Christina "was at his side influencing him to change the Trust[]" and disinherit Alan.

He argued the amendments and Power of Appointment should be invalidated due to evidence of Christina's undue influence. He also maintained Christina was not a proper successor trustee and should be removed. Alternatively, he argued Christina breached her fiduciary duty in nine different ways as successor trustee. He asked the court to require that Christina file an accounting and report describing all her actions and transactions since Gerald's death. Christina filed a response to Alan's petition.

On May 28, 2014, Alan filed a motion to remove Christina as trustee and for the appointment of a temporary trustee. The following month, on June 27, 2014, Alan filed a first amended petition, adding an allegation that the second amendment to the Trust lacked due execution.

The court denied Alan's request to remove Christina and appoint a temporary trustee. In its ruling, the court stated it was too early to determine if Alan had standing to challenge Christina's position. It noted Alan failed to show it would be appropriate to appoint a successor trustee if removal was proper. Trial was set for May 11, 2015.

The trial court made several procedural rulings before trial, and we will describe the facts surrounding those decisions in more detail below as part of our review of them. For purposes of this summary it is sufficient to say the court allowed Alan's counsel to withdraw two months before the May 2015 trial date and, thereafter, continued the trial twice. Alan found a new attorney, William E. Baker, Jr., and the court denied his request to amend the witness list. The court also granted Christina's motion to stop Alan from taking six depositions one week before the new September 21, 2015, trial date.

At the five-day court trial, Alan presented his case by calling the following witnesses: (1) Ellsworth; (2) Hon; (3) Alan; (4) German Zermeno (Gerald's treating physician); and (5) Christina. After Alan's counsel rested, Christina's counsel moved for a judgment in her favor pursuant to Code of Civil Procedure section 631.8. The court heard oral argument and granted the motion. Alan retained new counsel, Todd Lundell, who filed a motion for new trial on the grounds Alan's case was prejudiced by the pretrial rulings. The court denied the motion.

All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.


Alan raises four primary issues on appeal. First, he asserts the trial court "deprived" him of a "fair opportunity to present his case" by denying his motion to untimely designate expert witnesses, allowing his initial counsel to withdraw too close to the trial date, and denying discovery. Second, Alan contends the trial court should have granted his motion for new trial. Third, he challenges the validity of the second amendment to the Trust. Fourth, Alan argues that if we reverse the matter for a new trial, he should be permitted to challenge Christina's status and actions as trustee. I. Pretrial Rulings

Starting with the unfair trial allegation, we begin by reviewing each of the pretrial rulings challenged in Alan's appeal. As will be explained below, none of these rulings supplies a basis to overturn the judgment. A. Motion to Designate Expert Witnesses

March 23, 2015, was the deadline for designating expert witnesses. (§ 2034.230, subd. (b) [50 days prior to the initial May 11, 2015, trial date].) On that day, JMBM served an expert witness designation clearly stating Alan did "not presently intend to offer the testimony of any expert witnesses and, therefore [was] not designating any expert witnesses pursuant to the first exchange of expert witness information[.]" Similarly, Christina's expert witness designation stated she did not intend to offer expert witness testimony.

One week later, JMBM took steps to withdraw from the case. Alan retained Baker, who was formally substituted in as counsel on July 21. One month later, on August 17, 2015, Baker filed an ex parte application to designate two expert witnesses pursuant to section 2034.710, subdivision (a). Baker presented evidence he found in Alan's file a $6,000 "initial retainer" check to Stephen Read, a forensic psychiatrist. Baker believed that perhaps due to a "miscommunication" prior counsel spoke to this "intended expert" but failed to designate him. Baker stated Read would testify about Gerald's state of mind and susceptibility to undue influence before his death.

Baker also asked to designate Craig Alexander, a certified trust and estates specialist, who would testify about "the irrevocability" of the trusts Gerald tried to amend. Baker declared he contacted JMBM and requested a supporting declaration, but the firm had not responded. In addition, Baker attempted to meet and confer with Christina's counsel before filing the ex parte application and Christina refused to stipulate to the late designation.

Christina opposed the application on several grounds. She explained section 2034.710, subdivision (a), did not apply because it was intended to address situations when a party failed to submit any expert witness information on the date specified for the exchange. In this case, Alan timely submitted his list March 2015, when he announced he did not intend to offer expert testimony. She concluded Alan's motion was to amend the timely exchanged expert witness list, a motion governed by section 2034.610.

In addition, Christina noted the ex parte application did not present "any emergency." No material facts had changed to warrant ex parte relief. There was no evidence to support Baker's belief the failure to timely designate an expert was due to a miscommunication. The motion simply showed Alan wished to change his trial tactics. She noted Alan's need for experts was not mentioned in his prior motions to continue the trial.

The trial court denied the ex parte application. A reporter's transcript of the hearing was not included in our record. Judge Hubbard's minute order simply stated, "Untimely and insufficient explanation for the failure to designate timely." 1. Statutory Framework

The Legislature created strict procedures regarding expert witness discovery to "allow sufficient time before trial for experts to be identified so that the subject matter of their expected testimony can be fully explored at a deposition. [¶] . . . [The purpose of the statutory scheme] is to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area. 'The opportunity to depose an expert during trial, particularly if the testimony relates to a central issue, often provides a wholly inadequate opportunity to understand the expert's opinion and to prepare to meet it. [Citations.]' [Citation.] '[T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ordinary fact witnesses [because] . . . . [¶] . . . the other parties must prepare to cope with witnesses possessed of specialized knowledge in some scientific or technical field. They must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their opinions.' [Citation.] 'Late disclosure of experts . . . frustrates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.' [Citation.]" (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147.)

To achieve the goal of fair notice, the statutory scheme requires a simultaneous exchange of expert witness information. Section 2034.210 provides in relevant part: "After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses . . . ." (§ 2034.210.) A demand for exchange of expert witness information must be in writing, identify the party making the demand, and specify the date of the exchange of expert trial witnesses, expert witness declarations, and any demanded production of writings. (§ 2034.230.)

Section 2034.260, subdivision (a), requires "[a]ll parties who have appeared in the action" to "exchange information concerning expert witnesses in writing on or before the date of exchange" indicated in a demand for exchange of such information. Subdivision (b) of section 2034.260 states that "[t]he exchange of expert witness information shall include" either "[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial" or "[a] statement that the party does not presently intend to offer the testimony of any expert witness."

The Legislature enacted specific statutory provisions to address the situation when a party wishes to untimely add a name to a timely exchanged list (§ 2034.610 [amend the list]), which is different from when a party misses the deadline and seeks the court's permission to make an untimely disclosure (§ 2034.720 [untimely list]). Both provisions require the moving party give "sufficient time in advance of the time limit for the completion of discovery . . . to permit the deposition of any expert to whom the motion relates be taken within that time limit." (§§ 2034.610, subd. (b), 2034.710, subd. (b).) These motions also include "meet and confer" declarations. (§§ 2034.610, subd. (c), 2034.710, subd. (c).) Moreover, they must be made sufficiently in advance of the expert witness discovery cut-off date (which is 15 days before the date initially set for trial (§ 2024.030), to allow the expert to be deposed within that time limit. (§ 2034.610, subd. (b).)

Sections 2034.620 and 2034.720 set forth specific findings a court must make if it is to grant a motion for leave to file untimely expert disclosures. The statutes are similar, but not identical. Both require the court to do the following: (1) "[take] into account" the extent to which the opposing party has relied on the prior list or absence of a list (§§ 2034.620, subd. (a), 2034.720, subd. (a)); (2) determine if the opposing party will not be prejudiced (§§ 2034.620, subd. (b), 2034.720, subd. (b)); and (3) decide if the moving party filed and served the motion promptly (§§ 2034.620, subd. (c)(2)(A) & (B), 2034.720, subd. (c)(1) & (2)).

The difference between the two motions is relevant to this case. Alan timely designated his list, and therefore, his motion fell under section 2034.620. Before amending or augmenting an existing expert witness list, the court must decide "either of the following:" (1) the moving party could not have known earlier, "in the exercise of reasonable diligence," it was necessary to call that expert; or alternatively, (2) the omission was "a result of mistake, inadvertence, surprise, or excusable neglect." (§ 2034.620, subd. (c)(1) & (2).) Whereas, to grant a motion to file a tardy expert witness list, the court need only decide if the omission was a "result of mistake, inadvertence, surprise, or excusable neglect." (§ 2034.720, subd. (c)(1).) 2. Analysis

Because Alan seeks to amend his prior timely expert witness list exchange, section 2034.620 applies. Although we do not have the benefit of a reporter's transcript, we conclude the record amply supports a finding in Christina's favor on the first two conditions relevant to amending the list. The first factor the court must consider is reliance. Although the trial court did not mention this element in its written ruling, we find no reason to doubt Christina's claim she depended on Alan's list that confirmed he would not use expert witnesses when she prepared her own list. Christina prepared for trial based on the mutual decision both sides would forgo the use of experts. As for the second factor, Christina asserted she would be prejudiced because there was insufficient time to prepare for the new experts' technical testimony and/or locate rebuttal experts if necessary to defend herself. This is true. The trial date was less than one month away and Alan did not request a continuance to give Christina adequate time to prepare.

In its minute order, the trial court mentioned the final requirement for a witness list amendment. It stated there was an "insufficient explanation" for Alan's failure to designate two expert witnesses in his timely exchange five months prior. We agree. Alan failed to present evidence he "would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness." (§ 2034.620, subd. (c)(1).) To the contrary, Baker stated there was evidence Read received an "initial retainer" of $6,000 from Alan's prior counsel. Thus, after many months of discovery, Alan's counsel exercising "reasonable diligence" located an expert on the issue of testamentary mental capacity. Yet, the retained expert was omitted from the witness list. Alan speculates this omission was a result of "a result of mistake, inadvertence, surprise, or excusable neglect" of prior counsel. (§ 2034.620, subd. (c)(2).) We conclude there is simply no evidence to support this theory. It was just as likely the exclusion was an informed decision based on trial tactics. Alan failed to meet the requirements of section 2034.620.

The second expert, Alexander, was expected to testify as a legal expert on estate planning matters. Baker declared he wanted Alexander to testify about Christina's status, the legal consequences of acting as trustee, and the legal feasibility of Alan's disinheritance. All of these issues were present in March when Alan exchanged his witness lists with Christina. Alan offered no explanation as to why he "in the exercise of reasonable diligence" could not have determined he needed this expert five months ago. (§ 2034.620, subd. (c)(1).) Nor does he suggest the omission was "a result of mistake, inadvertence, surprise, or excusable neglect" of prior counsel. (§ 2034.620, subd. (c)(2).)

We found nothing to support such a theory particularly in light of the case authority holding one cannot "authorize an 'expert' to testify to legal conclusions in the guise of expert opinion." (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 (Downer).) "'The manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion. [Citations.] [¶] While in many cases expert opinions that are genuinely needed may happen to embrace the ultimate issue of fact (e.g., a medical opinion whether a physician's actions constitute professional negligence), the calling of lawyers as 'expert witnesses' to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day 'trial by oath' in which the side producing the greater number of lawyers able to opine in their favor wins. [Citations.]" (Id. at pp. 841-842.) B. Motion to Withdraw

On March 30, 2015 (42 days before trial), JMBM filed an ex parte application to withdraw from its representation due to a breakdown in the attorney-client relationship. JMBM stated it was no longer possible to represent Alan "in a manner that fulfills JMBM's obligations under the Rules of Professional Conduct." JMBM stated it contacted Christina and asked for her consent to continue the trial date "and all corresponding case management dates and deadlines so that [Alan] could retain new counsel."

Christina filed a response stating she recognized the exigent circumstances and she would not object to JMBM's withdraw from the case. She agreed to a 90-day continuance and agreed Alan could complete discovery already scheduled. However, Christina objected to new discovery. She explained, "Alan . . . had ample time in the 15 months since he filed his contest petition to devise and implement his discovery plan. During this 15-month period, Alan . . . conducted substantial discovery but failed to discover any evidence of undue influence." She reminded the court that the parties held a trial setting conference on September 12, 2014, and both parties knew the discovery cut-off was April 10, 2015. Christina listed 12 items, representing Alan's scheduled but uncompleted discovery. She concluded Alan's discovery going forward should be limited to the 12 items.

The scheduled discovery included depositions of Christina, Gerald's treating physicians, the person most knowledgeable in several medical facilities, and the custodian of Gerald's medical records.

The court denied the ex parte request on the grounds there was insufficient notice. It directed JMBM to file a motion and set a hearing for April 24, 2015.

In its motion, JMBM requested a six-month continuance to give Alan time to retain new counsel, "complete discovery," and prepare for trial. Counsel stated there was good cause for a continuance because there had been no prior continuances and there was no urgency or reason to keep the May 2015 trial date.

Christina responded she did not object to the withdrawal, but requested the new trial date be set preferably in 60 days, but no later than 90 days, after the current trial date. She stated Alan had completed comprehensive discovery, including three sets of document requests, special interrogatories, 16 document subpoenas, and depositions. With the discovery cut-off date in mind, Christina had completed her discovery and was ready for trial. She explained Alan had only a few scheduled discovery items to complete. Christina argued a six-month continuance would be excessive because Alan already had ample time to schedule and complete discovery.

In addition, Christina explained the Trust's second amendment required distribution of a multi-million dollar art collection to a charity, and "[a]n early trial is important to facilitate the determination of the federal estate tax and the distribution of the art collection." The federal estate tax return showed a gross estate of $66,474,048 and listed the art collection as a charitable deduction. The Internal Revenue Service (IRS) gave Christina an extension until May 24, 2015, to pay the federal estate taxes owed. She explained further delay would likely trigger a tax audit and create uncertainty regarding the charitable deduction. Moreover, a lengthy continuance would increase the Trust's expenses and liability related to maintenance of the art collection and other assets. "Prolonging the trust contest litigation also increase[d] the substantial costs of administration of the Trust."

On April 24, 2015, the court granted the motion to withdraw after considering the briefs and argument in a closed courtroom. The trial court continued the trial to July 20, 2015 (70 days), and ruled the discovery cut-off date would not be extended except Alan could complete the 12 discovery items already noticed. It ruled Alan could not notice any new or additional discovery without prior court approval. There is no reporter's transcript of this hearing.

A brief description of what transpired at the hearing was disclosed in Christina's counsel's subsequent declaration (prepared to support her opposition to a second continuance). Christina's counsel, Theodore I. Wallace, stated he objected to the initial request for a six-month continuance and the trial court "understood the urgency of an early trial" of the matter. Wallace stated Alan's claim his attorney "fired" him was untrue. "At the withdrawal hearing . . . Erickson, the partner at [JMBM] in charge of Alan['s] trust contest, informed the court his firm sought to withdraw as counsel because Alan . . . not only claimed . . . Erickson had committed malpractice . . . but also claimed . . . Erickson was 'sick.'"

Alan also discussed the matter in his declaration (filed to support a second continuance). He stated JMBM billed him more than a $1,000,000 for legal work. He argued this large legal bill suggested the case was complex and required a longer continuance. Alan admitted JMBM first informed him in "late March of 2015" of its intent to withdraw as counsel.

One week before the July 2015 trial date, Alan requested an additional 90 days to permit his new counsel to complete discovery and prepare for trial. The court continued the matter for 60 days. Thus, trial was continued for a total of 130 days following JMBM's withdrawal from the case. 1. Applicable Law

With court approval, an attorney may withdraw from representing a client while an action is pending. (§ 284; Cal. Rules of Court, rule 3.1362.) California Rules of Professional Conduct, rule 3-700(C), establishes the grounds upon which an attorney may seek to withdraw, including: "(1) The client [¶] (a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or [¶] (b) seeks to pursue an illegal course of conduct, or [¶] (c) insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act . . . ."

In making its determination, the court must also consider any potential prejudice caused to the client by the withdrawal. California Rules of Professional Conduct, rule 3-700(A)(2) provides, "A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, [turning over the client's complete file], and complying with applicable laws and rules."

Pursuant to these rules, a trial court may permit an attorney to withdraw based on a "personality clash" between the attorney and client that leads to a breakdown in the attorney-client relationship. (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014 (Falco).) It is irrelevant whether the attorney or the client caused the breakdown. Rather, the relevant consideration is "the effects the rift would have" on the client's legal representation. (Ibid.) Although a trial court may not simply "'rubber stamp'" an attorney's request to withdraw based on a claimed breakdown in the attorney-client relationship, the court may accept the attorney's good faith representations unless the court has reason to doubt the attorney's sincerity. (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592, 594.)

"The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. [Citation.] Where issues of confidentiality prevent 'counsel from further disclosure and the court [accepts] the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.' [Citations.]" (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' [Citations.]" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) 2. Analysis

Alan concludes the court's ruling left him "adrift and unrepresented just two months before trial, with much work left to be done." However, Alan did not supply this court with a reporter's transcript of the hearing on the motion to withdraw. "It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Without the reporter's transcript, we must presume the validity of every trial court decision, and we must presume every fact existed to make the trial court's decision valid. (See Hammel v. Lindner (1964) 224 Cal.App.2d 426, 434; Cal. Rules of Court, rule 8.163.)

After examining the record, we conclude there was no abuse of discretion. As explained above, it did not matter who caused the breakdown in the attorney-client relationship (Falco, supra, 188 Cal.App.3d at p. 1014), and Alan does not dispute JMBM gave sufficient legal justification for its withdrawal request. Rather Alan rests his entire argument on the timing of the motion, maintaining the court erroneously permitted JMBM to withdraw two months before the original trial date. Specifically, he complains there was insufficient time to complete discovery or designate expert witnesses, causing prejudice.

Although Alan lists two problems caused by the late withdrawal, we conclude the only relevant consideration was whether 70 days was sufficient time to find a new attorney and complete the 12 items of unfinished discovery. As explained in detail above, the untimely expert witness designation was thwarted for reasons unrelated to counsel's withdrawal from the case. Simply stated, Alan could not satisfy the legal requirements for an untimely amendment to the previously filed witness list. Additional time with JMBM's representation would not have assisted Alan with this problem.

This leaves the issue of whether 70 days was sufficient time to find a new attorney and complete 12 items of unfinished discovery. Alan does not cite to any legal authority holding a 70-day continuance, following the withdrawal of counsel, was inadequate to address the reasonably foreseeable prejudice caused by a withdrawal close to the trial date. The case he cites is inapt. In United States v. Pointer (7th Cir. 1994) 17 F.3d 1070, 1073 (Pointer), defendant argued the district court contributed to defense counsel's ineffective assistance because the court did not grant counsel's motion to withdraw four days prior to trial. The appellate court stated four days was "a very late date" to make the request, and in any event, neither counsel nor defendant "pointed to anything, save vague allegations that he did not trust his lawyer and that his lawyer did not understand the case very well, as evidence that his lawyer should have been allowed to withdraw and new counsel substituted." (Ibid.) It concluded there was no abuse of discretion because counsel did not give sufficient justification for the appointment of new counsel and delay of trial. (Ibid.) But in the case before us, there is no dispute counsel gave sufficient justification for the withdrawal. Moreover, JMBM's request came nearly two months before the trial date and the court gave Alan an additional 70 days to find new counsel and complete discovery. This case is simply not analogous to the Pointer case.

Alan also refers to an unpublished order prepared by an Arizona district judge denying a motion to withdraw two months before trial because the ruling would leave a party unrepresented at trial. The order is not binding authority, and in any event, the request to withdraw was based on a conflict of interest the court recognized was resolved after its recent ruling on liability. (Verve, L.L.C. v. Hypercom Corp. (D. Ariz. Aug. 16, 2006) No. CV-05-0365-PHX-FJM, 2006 WL 2390505.)

We found no authority holding a trial court abuses its discretion in granting an attorney's withdrawal motion when the trial court also granted a continuance to permit the abandoned party to locate new counsel. Certainly, there is authority holding it was an abuse of discretion to permit withdrawal on the eve of trial and not grant a continuance to avoid the prejudice of a party going to trial without representation. (See Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399-1400.) However, here the court granted Alan a 70-day continuance and allowed him to finish uncompleted discovery. Alan failed to establish prejudice from the withdrawal, especially since the court later granted Alan a second lengthy continuance of the trial date (a fact Alan fails to mention as being relevant to this issue). We conclude the trial court did not abuse its discretion in allowing counsel to withdraw because it also gave Alan a total of 120 days to find new representation, complete discovery, and prepare for trial. C. Unfinished Discovery

As part of the trial court's May 6 order allowing Alan's counsel to withdraw, the court stated in its minute order, "Discovery cut off is not extended except for discovery that has already been served." The written order, prepared by Christina's counsel, stated, "[t]he present discovery cut-off date [April 10] remains," and "Alan . . . may complete his uncompleted discovery that was noticed before the present discovery cut-off date. However, [he] shall not notice any new or additional discovery without prior court approval."

Christina's opposition included a detailed list of Alan's "scheduled but uncompleted discovery" as follows: (1) Christina's deposition; (2) depositions of Gerald's physicians (Zemeno and Antonio Jimenez); (3) deposition of "persons most qualified" at three different medical facilities; and (4) deposition subpoenas for production of business records from six different places treating Gerald. The court's order did not give a deadline for the completion of these 12 items of discovery.

In mid-July 2015, Alan had not found a new attorney, and he requested a second continuance, extension of the discovery cut-off date, and a new mandatory settlement conference date. The court ordered a 60-day continuance, changing the trial date to September 21, 2015. The minute order stated, "No new discovery cut-off date and no new [m]andatory [s]ettlement [c]onference ordered. If new counsel seeks to reopen discovery and/or request a further continuance he/she may do that by bringing their own motion before the court." This order did not change the prior ruling authorizing Alan to finish the 12 uncompleted items. Thus, the order did not impose a deadline for the unfinished depositions.

Alan retained Baker on July 21, 2015, and approximately one month later, the court denied his ex parte application for leave to submit tardy expert witness information. The following week, on August 28, 2015, Baker served notices for six depositions, all scheduled for the week immediately preceding trial.

Christina filed an ex parte application for an order cancelling her deposition and quashing the subpoenas for personal appearances served on five other witnesses. The notices of continued depositions were for the following individuals: (1) Zermeno; (2) Jimenez; (3) the person most qualified of Head and Neck Associates of Orange County; (4) the person most qualified of Hope 4 Cancer; and (5) the person most qualified of Institute for Progressive Medicine.

Christina argued the notices of depositions and subpoenas violated the 30-day discovery cut-off and previous orders of the court. She reminded the court it had denied Alan's request to extend the discovery cut-off as part of its last order granting a continuance. In that order, the court advised Alan that his new counsel could file a motion to reopen discovery or request a further continuance. Baker had not done so. Christina requested $4,500 in sanctions against Alan and/or his attorney.

Alan's counsel filed an opposition. He argued Christina agreed, and the court ordered, Alan could conduct discovery to matters already scheduled but not yet completed. Baker stated that after he was retained on July 22, 2015, he received "within two weeks a CD containing thousands of pages of documents." After reviewing the documents, Baker found the incomplete discovery and sent notices for only depositions found on the "'safe list'" of previously noticed discovery requests. Alan concluded Christina was now reneging on her prior agreement.

On September 3, 2015, Commissioner Thomas H. Schulte granted Christina's ex parte application, cancelling the depositions and quashing the subpoenas. There is no reporter's transcript of the hearing in our record. Of the six individuals not deposed, Alan only called Christina and Zermeno to testify at trial and he questioned these witnesses as part of his case-in-chief. 1. Legal Principles

"In California, the cutoff date for discovery is generally linked to 'the date initially set for trial' or, as it is sometimes phrased, 'the initial trial date.'" (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1292 (Beverly).) For example, section 2024.020, subdivision (a), provides in relevant part, "[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action." "Except as provided in section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings." (§ 2025.020, subd. (b).)

There is an exception to the rule a continuance does not operate to reopen discovery. "On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set." (§ 2024.050, subd. (a).) "In context, the 'new trial date' referred to in [section 2024.050,] is the date set after a continuance or postponement. [Citation.] In considering such a motion, 'the court shall take into consideration any matter relevant to the leave requested,' including (1) the necessity and the reasons for the discovery, (2) the diligence, or lack thereof, of the party seeking relief, (3) the likelihood that permitting the discovery will delay the trial or otherwise interfere with the trial calendar, or will result in prejudice to any party, and (4) the length of time that has elapsed between any date previously set and the date presently set, for the trial of the action. [Citation.] In addition, although discovery as of right is precluded after the cutoff, the parties may agree to extend the time for completion of discovery proceedings or to reopen discovery after a new date for trial of the action has been set. [Citation.]" (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 249-250.)

"The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay. Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial and beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cutoff date." (Beverly, supra, 19 Cal.App.4th at p. 1295.)

We review discovery orders for abuse of discretion. (Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 912.) "Where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.] The trial court's determination will be set aside only when it has been demonstrated that there was 'no legal justification' for the order granting or denying the discovery in question. [Citations.]" (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.) 2. Analysis

In this case, the trial court's ruling granted Alan leave to complete discovery but did not reopen discovery after a new trial date had been set. This meant the original discovery cut-off date of April 10, 2015, was not updated to coincide with the postponed trial date. Nevertheless, the ruling plainly and clearly permitted Alan to complete 12 items of discovery anytime after April 10, 2015, without a set deadline. Accordingly, there was no legal basis for the court to prohibit Alan's counsel from completing the discovery the week before trial.

We appreciate the purpose of imposing a time limit on discovery to expedite and facilitate trial preparation, however, the court's open-ended order authorizing Alan to complete the depositions anytime before trial superseded the general rules outlined in the statutory scheme. We conclude the court abused its discretion in refusing to acknowledge its prior order authorizing Alan to complete depositions, without any newly imposed time limits, after the original discovery cut-off date.

However, this conclusion is a hollow victory for Alan. The California Constitution states, "No judgment shall be set aside . . . for any error as to any matter of . . . procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "This provision 'is amplified by . . . section 475, which states that trial court error is reversible only where it affects ". . . the substantial rights of the parties . . . ," and the appellant "sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed." Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred. [Citations.] . . . [¶] . . . When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial. Article VI, section 13, admonishes us that error may lead to reversal only if we are persuaded "upon an examination of the entire cause" that there has been a miscarriage of justice. In other words, we are not to look to the particular ruling complained of in isolation, but rather must consider the full record in deciding whether a judgment should be set aside.' [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 (Paterno).)

Although Alan has shown error, his effort to show prejudice falls short. "[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citations.]" (Paterno, supra, 74 Cal.App.4th at p. 106.) Alan's conclusory claims about the theoretical importance of taking depositions before trial do not persuade us the error in this case caused a miscarriage of justice. Alan offers nothing to suggest the deposition testimony would have differed significantly from the trial testimony. Nor does he explain the significance of choosing to question only two of the six witnesses at trial. This conduct alone suggests Alan believed four witnesses were not ultimately worth bothering with to prove his case.

We found very telling that of the six uncompleted depositions, Alan's opening brief refers only to the prejudice caused by his inability to take Christina's deposition. For example, Alan argues, "[H]ad Christina's deposition been taken, counsel would have had a road map to cross-examine her in detail, rather than tip-toe around the cross-examination because he had no deposition with which to impeach her." Alan cites to several legal treatises explaining depositions are a powerful discovery device that can help ascertain critical information. In his reply brief, Alan adds, "Without a deposition from Christina, how was Alan supposed to discover and present direct evidence of her meetings with Gerald? . . . Alan was able to present some evidence of communications between Gerald and Christina showing that she met privately with him the day before he first directed Ellsworth to make changes to the estate plan, and that she and Gerald had multiple calls with Ellsworth the day Ellsworth was drafting the power of appointment and making other changes to the estate plan. . . . Alan had no opportunity to depose Christina as foundation for cross-examining her at trial."

We note Alan questioned Christina as part of his case-in-chief and was permitted to ask her leading questions, questioning her as an adverse party "as if under cross-examination." (Evid. Code, § 776.) Consequently, Alan's counsel asked Christina many questions about her communications with Gerald. There was nothing to suggest Christina was withholding information about undisclosed, additional meetings or conversations. Alan's theory a pretrial deposition would have provided grounds to impeach Christina is based entirely on speculation, suspicion, and conjecture.

We have carefully reviewed Christina's trial testimony, and it is plainly apparent Baker did not "tip-toe" around Christina with general questions, but rather he pointedly asked for details about her relationship with all interested parties. He obtained specific information about her contacts with Gerald and Ellsworth, both before and after Bente's death. Baker's inability to establish the required elements of undue influence from Christina was not due to lack of preparedness, but because Christina was steadfast in her denials of wrongdoing.

We found nothing inherently suspicious about Christina's testimony or anything suggesting she was withholding information. Moreover, the bulk of her testimony was confirmed by other witnesses close to Gerald. We would have to guess at what additional information would have been revealed at Christina's pretrial deposition that would have tipped the scales in Alan's favor.

It is interesting to note Alan acknowledges Christina's testimony mirrors the testimony of other witnesses. He maintains this bolstering must be discounted because Christina employed both Ellsworth and Anderson after Gerald's death. Without a shred of evidentiary support, Alan suggests these witnesses "predictably" were supportive of Christina. In essence, Alan is proposing these witnesses either perjured themselves at trial to protect their new employer, or were part of a grand conspiracy before Gerald's death to secure future employment. Aside from the obvious speculative nature of this argument, it lacks relevance to the issue of whether any prejudice arose from the pretrial discovery ruling. Any testimonial bias created by the employment relationship could be and was explored at trial. Alan failed to meet his burden of proving something more could have been gained from deposing Christina before questioning her as a witness at the trial or that additional deposition evidence would have made it reasonably probable a result in his favor would have been reached in the absence of the error.

As mentioned earlier, Alan does not specifically refer to any prejudice caused by the failure to depose the five other witnesses (two treating physicians and three "persons most knowledgeable" in several medical facilities). Presumably these witnesses would have been questioned about Gerald's health and mental state in the five weeks leading to his death. Alan decided to call only one treating physician, Zermano, to testify at trial. This decision suggests the other four witnesses were not essential to Alan's case. His decision to abandon these witnesses significantly weakens his argument on appeal that the inability to depose them before trial resulted in a miscarriage of justice. We refuse to speculate about how deposing these four witnesses would have made it reasonably probable Alan would prevail. An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. (Paterno, supra, 74 Cal.App.4th at p. 106.)

As for Alan's inability to depose Zermano before trial, we found no prejudice. Alan questioned Zermano at length about Gerald's diagnosis and treatment. Zermano stated that in mid-July Gerald had lost a lot of weight and was having difficulty communicating. When asked about his mental capacity, Zermano testified, "[Gerald] was alert and well oriented. I wouldn't say there was any problem mentally at that time." Zermano explained Gerald refused surgery and radiation treatment in favor of "natural alternative treatment." He stated sometimes non-traditional treatment results in a cure. Baker asked Zermano detailed questions about Gerald's condition, using Gerald's medical records. Zermano recalled he never saw other people accompany Gerald for medical visits, bolstering other testimony Gerald desired to keep his illness a private matter. At the last office visit, Zermano remembered Gerald was deteriorating rapidly. "He was very anxious. He was looking for any . . . cure or help. He was actually looking into going to Germany or Mexico or other places. And he looked like he was having difficulty breathing."

It appears Zermano offered a clear and unequivocal account of Gerald's medical and mental status in the months leading to his death. There was nothing to suggest Zermano was withholding information or could have been impeached. Alan does not suggest what more could have been gained from deposing Zermano before trial.

In the reply brief, Alan maintains Christina relies on unreliable witnesses to bolster her claim Gerald's possessed a strong state of mind and was not vulnerable to undue influence. Alan reasserts Ellsworth and Anderson were biased employees "and had reason to favor her." He adds, "Even . . . Zermano . . . was compromised by his need to defend his treatment of Gerald." This argument is incongruous. No one suggested Gerald's death was hastened by medical malpractice or that Zermano's testimony was tainted with the need to shield himself from liability. More importantly, the argument fails to make any connection to the issue at hand, i.e., did Alan's inability to depose these witnesses result in a miscarriage of justice. Simply stated, even if we assume all the testimony was biased, how would the six pretrial depositions have altered this fact. If Zermano had something to hide, it is reasonable to conclude his deposition testimony would be equally biased and identical to his trial testimony.

Alternatively, Alan challenges his burden of proof in establishing prejudice as being inequitable. Alan maintains he should not be required to establish how exactly deposing the six witnesses would have tipped the scales in his favor. He argues this "test" creates an unfair "Catch-22 situation." He claims he needed the discovery to learn what they knew. But he provides no explanation of why he thinks there is something to be found. We find none of the cases he cited are persuasive or applicable on this point. We found no legal authority to support the argument Alan should have a lesser burden in proving prejudice following an erroneous discovery ruling.

The four cases Alan relies on are factually distinguishable. None involve an appeal from a judgment following a trial where the witness could be called to testify about matters relevant to the case. For example, Alan argues CSC Holdings, Inc. v. Redisi (7th Cir. 2002) 309 F.3d 988 (CSC Holdings), held a trial court's ruling denying a party the right to depose a central witness was reversible per se. In that case, a cable television service provider (Cablevision) brought action against the manufacturer of illegal cable television decoders and the trial court granted summary judgment for the provider. (Id. at p. 990.) On appeal, the manufacturer argued the statute of limitations was tolled because Cablevision knew or had reason to know about the continuing violation as early as 1991, and no later than 1995. (Id. at p. 993.) The key issue in the case was how much Cablevision knew about the manufacturer's illegal activities but the district court refused to let the manufacturer depose Cablevision's senior vice president. (Id. at p. 994.)

The appeals court in CSC Holdings reversed the ruling. "The sole ground the district court offered for its denial of the . . . motion to depose [the vice president] was that his testimony would not be relevant. . . . In this case, however, it is plain [the] deposition would have assisted in exploring the material issue of whether the [manufacturer] had a valid statute of limitations defense to the bulk of Cablevision's claim. The district court's determination that the motion to compel was "not relevant" was based, as far as the record shows, only on Cablevision's bare representation [the vice president] knew nothing about the case and that four other deposed Cablevision employees knew as much as he did." (CSC Holdings, Inc., supra, 309 F.3d at p. 993.) The court deemed the vice president's deposition highly relevant. "[The manufacturer presented evidence] none of the individuals Cablevision produced had been with the company for more than 14 months, while [the vice president] had worked there for close to a decade. As director of corporate security with responsibility for cable theft investigations, he alone could provide the answer to the relevant question of whether Cablevision had knowledge sufficient to trigger a duty to investigate more than 24 months before it brought suit." (Id. at pp. 993-994.)

In summary, the court concluded the discovery ruling was reversible error because it precluded the manufacturer from obtaining the evidence it needed to adequately raise its only defense in the motion for summary judgment. (CSC Holdings, Inc., supra, 309 F.3d at p. 994.) However, if that case had gone to trial, the ruling would no longer be relevant. The manufacturer presumably would have had the opportunity to question the vice president on the witness stand during the trial. The holding of CSC Holdings is factually limited to context of giving parities the ability to adequately raise a defense in response to a pretrial motion.

Similarly, In re Marriage of Colombo (1987) 197 Cal.App.3d 572, 578-580, has no application to the issue at hand. In that case, the trial court sanctioned Wife in a dissolution action for failing to comply with a local rule when she untimely filed a responsive pretrial statement. The court waived Wife's right to object or deny Husband's pretrial statement and request for admissions, in which he declared most of the marital assets as his separate property. (Id. at p. 578.) The appellate court reversed the sanction, holding Wife's newly hired attorney was at fault for the delay not Wife, and the sanction deprived Wife of a fair trial on the merits. (Ibid.) "[T]he practical effect of the trial court's action was to prevent the introduction of any evidence on the extent to which the property claimed by Husband as his separate property was in fact community property. By not inquiring into the question of responsibility for the failure to comply with local rules, and by imposing the harsh penalty which it did, the trial court effectively denied Wife's opportunity to dispute Husband's claims to the bulk of the couple's property. Wife was thus denied a trial on the merits." (Id. at p. 579.) This case also concerns a pretrial ruling that denied a party the right to present any evidence at trial. Wife's sanction precluded her from disputing Husband's claim. Here, Alan was not similarly sanctioned and he was given the opportunity to present both testimony and documentary evidence on the main issue at hand, i.e., undue influence.

Armstrong v. Gates (1973) 32 Cal.App.3d 952, 954, 957 (Armstrong), was an appeal from an order setting aside a default judgment. The trial court ordered no oral testimony would be permitted at the hearing. (Id. at p. 957.) The motion to set aside the judgment was based primarily on the declaration of senior claim specialist at an insurance company. (Id. at p. 955.) The appellate court considered whether a protective order denying the moving party the right to depose the claim specialist before opposing the motion to set aside the default judgment was erroneous. (Id. at p. 957.) Plaintiffs sought to discredit statements contained in the claim specialist's declaration. (Id. at p. 958.)

In Armstrong, the appellate court recognized the trial court had wide discretion to fashion a protective order under the discovery statutes, but held it was an abuse of discretion when the protective order was not based on legally insufficient grounds. (Armstrong, supra, 32 Cal.App.3d at p. 958.) The court rejected the argument depositions were unnecessary because the facts were all set forth in declarations and affidavits. It explained, "'This contention misconceives the obvious distinctions between a unilateral affidavit and a bilateral examination. Of course, in an affidavit, the affiant states only those facts that support his contentions, but in a deposition his opponent may inquire into further facts not volunteered by the witness. Obviously, the scope of an affidavit does not cover the same area encompassed by a deposition. As between the two, only deposition affords an opportunity to alter the effect of the opponent's factual claims by obtaining from him any information which would tend to rebut or go to the credibility thereof.'" (Id. at p. 959.) In contrast, a deposition was not necessary to inquire into matters relating to the issue at this trial. The matter was not decided based on affidavits and declarations. Alan was permitted to call witnesses to testify and ask questions beyond those contained in self-serving affidavits.

Similarly, Alan's reliance on a case from 1923 is unavailing. In People v. Wallach (1923) 62 Cal.App. 385, 387, defendant appealed his felony conviction for willfully failing to provide support of a minor child. Defendant left his wife and children to seek employment and sought to prove he made efforts to communicate with them, and therefore, the lack of support was not willful. (Id. at pp. 391-392.) The appellate court determined it was prejudicial error for the trial court to stop defendant from deposing his former attorney to obtain defendant's letters to his family. (Ibid.) The attorney refused to return the letters. "These letters would have been most important and convincing evidence. Defendant was entitled to have them presented to the jury and he was entitled to secure their production by the only means open, which was to take the deposition of [former counsel]. The denial of this right is, in itself, prejudicial error and demands a reversal of the judgment." (Id. at p. 392, italics added.) Unlike defendant in this ancient case, Alan had other means to present evidence. The depositions were not the "only means open" to obtain the evidence needed.

Finally, Alan offers a new argument that essentially asks us to review the prejudice issue as if he were raising a sufficiency of the evidence argument. He reasons that due to the overwhelming evidence of undue influence, his burden of showing prejudice should be reduced. This argument begins with the premise that a presumption of undue influence was available after he established certain facts. Alan argues that when this presumption was triggered the burden shifted to Christina to prove she did not unduly influence Gerald. (Citing Estate of Kerner (1969) 275 Cal.App.2d 785, 788.) Alan then argues the record amply supported a finding with respect to all three elements required for the presumption. He reargues the significance of many facts presented at trial pointing to Christina's undue influence. He also discusses the importance of circumstantial evidence in these types of cases. Alan concludes, the "denial of the discovery and refusing to allow Alan to designate experts, both singly and in combination, denied Alan his 'reasonable chance' of offering more evidence that would have convinced the trial court that he either established this presumption or showed he could have prevailed—depending on how one reads the record. But either way, he was prejudiced because he would have a reasonable chance of prevailing."

We will not reexamine or reweigh the evidence presented at trial. Alan overlooks many facts supporting Christina's argument Alan was the cause of his own disinheritance. And in any event, our review is limited to the issue of whether Alan satisfied his burden of showing the error was prejudicial. Alan's burden of proof was not diminished by the possibility his evidence triggered a presumption of undue influence. We cannot set aside the judgment simply because Alan believed he had a good case. It is our duty to review the entire cause and ascertain if Alan would have obtained a more favorable result in the absence of error. (Cassim. v Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) As stated earlier, our duty arises only after Alan has fulfilled his duty of "spelling out in his brief exactly how the error caused a miscarriage of justice." (Paterno, supra, 74 Cal.App.4th at p. 106.) Alan never explains why there was a reasonable chance he would have prevailed if he had taken six depositions before trial. Instead, he maintains that due to the substantial evidence of undue influence discussed in his briefing, "[i]t is fair to conclude the denied discovery (including Christina's deposition) . . . would have provided the evidence to tip the scales and therefore Alan has shown prejudice." This sentence offers us nothing more than pure speculation. Why is it fair to assume there was hidden or additional evidence out there? It is not sufficient to point out the mistake and rely on generalities, speculation, suspicion, and conjecture. II. Motion for New Trial

Alan's motion for new trial was based on the same arguments raised in the first part of his appeal. Alan explains he separately challenged the new trial ruling "as a protective argument" in the event this court believed it needed to reverse this ruling before ordering a new trial due to reversible error created by the various pretrial rulings. Having concluded the other arguments relating to the pretrial rulings lack merit, we will not disturb the trial court's denial of the new trial motion brought on those same grounds. III. Validity of Second Amendment

Alan argues the second amendment to the Trust was not duly executed because the notary failed to obtain Gerald's thumbprint, as required by Government Code section 8206 (hereafter referred to as the thumbprint issue). Christina argues nothing in the Trust required a thumbprint, Gerald's legal authority is inapplicable, and a notary's violation of Government Code section 8206 does not control the enforceability of the document being notarized. We found nothing in the record indicating the trial court considered or ruled on this issue (which was not raised in the petition). The issue was briefly mentioned in Alan's trial brief and pretrial statement. However, at trial it appeared the issue was abandoned. After Anderson and Ellsworth both stated a thumbprint was not required, Alan's counsel presented no further evidence on this point before resting his case. During counsel's very lengthy oral argument in response to the dispositive motion for judgment, he never mentioned the thumbprint issue. Nor was it mentioned in the moving papers or argument for new trial. Neither party discussed abandonment or forfeiture in the briefing. We are required by Government Code section 68081 to "afford the parties an opportunity to present their views on the matter through supplemental briefing" before resolving the case on this basis. Thus, as required by law, we asked the parties to submit supplemental briefing.

Alan attached to his supplemental brief a copy of his request for a statement of decision, which the trial court denied as untimely. He acknowledged this document was not included in the appellant's appendix because it was irrelevant to the issues he raised on appeal. He argues the document proves the thumbprint issue was not abandoned because he asked for a ruling on the matter, and if the court had prepared a statement of decision without discussing the issue, he "could have" objected. We conclude the document is irrelevant. It was prepared after the court entered its judgment on the record. Having lost on specific issues litigated and considered by the trial court, Alan's request for a ruling on the thumbprint issue simply looks like an attempt to revive an abandoned issue. --------

We begin our analysis by rejecting Alan counsel's first argument, raised in his supplemental brief, asserting "it is too late for Christina to argue waiver or forfeiture now" and this court "should not do it for her." To support this contention, Alan cites to a case holding a punitive damages claim not properly pled may still be considered on appeal because the parties litigated the issue at trial under the assumption the punitive damages claim was pled and "the trial judge considered this damage claim an issue properly raised." (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 392.)

The case is not analogous to the one before us. Unlike the heavily litigated damage claim in the Hillard case, the thumbprint issue was briefly mentioned in Alan's trial brief and fleetingly discussed at trial when two witnesses refuted there was a thumbprint requirement. More importantly, unlike the Hilliard case, there is nothing to suggest the trial court considered the thumbprint issue as being properly raised and there is no evidence the court deliberated on the legal merits. To the contrary, the record indicates Alan abandoned the accusation and the court made no decision about it. Simply stated, we did not raise the abandonment issue to assist Christina, but rather because we properly recognized that without a legal ruling on the issue there is nothing for this court to review.

Alternatively, Alan asserts legal issues can be decided for the first time on appeal. He relies on C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1491-1492, which states, "An appellate court ordinarily will not consider arguments made for the first time on appeal . . . [unless] the new argument raises a pure issue of law on undisputed facts. . . . On appeal, a party may . . . even 'change the legal theory he relied upon at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record' [citation]." However, the thumbprint issue was not a "new theory" being raised for the first time on appeal. The rule does not apply to a legal issue raised but abandoned at the trial court level. (Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 969 ["counsel may not abandon a theory of recovery during trial and then seek to revive it on appeal"].)

Alan argues that when there is no statement of decision, this court must presume the court made all factual findings necessary to support the judgment for which substantial evidence exists. (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1149.) Based on this legal premise, Alan argues we must hold the court "impliedly" ruled against Alan on the thumbprint issue when entering judgment in Christina's favor. However, as Alan pointed out previously, the thumbprint issue is a legal issue based on undisputed facts. The trial court need only resolve disputed legal issues before entering the judgment. There is no reason to assume the trial court would have considered and ruled on an abandoned claim.

Finally, Alan asserts he was not required to raise the thumbprint issue in the new trial motion in order to preserve it for appeal. He is right. However, Alan's failure to raise the issue in the new trial motion serves to further support the conclusion his counsel abandoned the claim during trial in favor of pursuing stronger legal theories. It also supports a finding of implied waiver. The trial court did not mention the thumbprint issue in granting Christina's motion for judgment (§ 631.8). On the record, the court simply made the finding there was no evidence to support the claim of undue influence. At the time, Alan did not ask the trial court to rule on the validity of the Trust's amendment. The final written judgment stated the first amended petition was denied and "the [c]ourt finds that [Christina] did not unduly influence [Gerald] and the second amendment did not lack due execution." The court was referring to the "lack of execution" allegations contained in the amended petition, which were legally distinct from the thumbprint issue. Had the issue been presented in the new trial motion, and had the court agreed it was overlooked, the problem could have been rectified with an express ruling on the legal merits of the claim. "'An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.' [Citation.] It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.]" (Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.) IV. Christina as Trustee

Alan's final argument on appeal is premised on the conclusion we have reversed the matter for a new trial. Because we have affirmed the court's ruling denying the new trial motion and affirmed the judgment, we need not address Alan's desire to challenge Christina's status and actions as trustee if the case were to be remanded.


The judgment is affirmed. Respondent shall recover its costs on appeal.


Summaries of

Buck v. Buck

Aug 9, 2017
G053279 (Cal. Ct. App. Aug. 9, 2017)
Case details for

Buck v. Buck

Case Details

Full title:ALAN M. BUCK, Plaintiff and Appellant, v. CHRISTINA BUCK, as Trustee,…


Date published: Aug 9, 2017


G053279 (Cal. Ct. App. Aug. 9, 2017)