Mastersv.Ries

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIAMar 22, 2017
D070963 (Cal. Ct. App. Mar. 22, 2017)

D070963

03-22-2017

ALLISON MASTERS, Plaintiff and Respondent, v. CHRISTINE M. RIES, Defendant and Appellant.

John L. Dodd & Associates and John L. Dodd, Benjamin Ekenes for Defendant and Appellant. Hershorn & Henry and Jean C. Wilcox, Corbett Steelman & Specter and Ken E. Steelman for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00630301) APPEAL from a judgment of the Superior Court of Orange County, Richard W. Luesebrink, Judge. Affirmed. John L. Dodd & Associates and John L. Dodd, Benjamin Ekenes for Defendant and Appellant. Hershorn & Henry and Jean C. Wilcox, Corbett Steelman & Specter and Ken E. Steelman for Plaintiff and Respondent.

Defendant and appellant Christine M. Ries appeals from a judgment in favor of her sister Allison Masters following a bench trial on Ries's petition seeking to confirm the will and trust of their father Adolf Wolf as well as Ries's status as its sole trustee, and Masters's cross-petition to declare void or voidable the will and trust in part on grounds those documents were procured by Ries's undue influence. The trial court declared Wolf's will and trust void and ordered his estate to pass to his heirs by intestate succession. Ries contends: (1) the trial court erroneously shifted the burden to her to prove by clear and convincing evidence that Wolf's will and trust were not procured by undue influence; (2) no substantial evidence supports the court's finding that she failed to rebut the presumption of undue influence; (3) even if substantial evidence supports the court's undue influence findings, there is no evidence the undue influence extended to the portion of Wolf's estate plan disposing of his Mercedes Benz vehicle; and (4) the court erred by including in its judgment a permanent injunction as to one of Wolf's bank accounts having a pay-on-death provision in Ries's favor.

We reject these contentions, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On our review of the judgment based on a statement of decision following a bench trial, we set forth the background facts in the light most favorable to Masters as the prevailing party and resolve in favor of the trial court's decision " 'any conflict in the evidence or reasonable inferences to be drawn from the facts . . . .' " (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) We refer to the trial evidence as well as those facts cited in the court's statement of decision. (See In re Shaputis (2011) 53 Cal.4th 192, 214, fn. 11; Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1106 [substantial evidence review extends to entire appellate record].)

Though Ries filed extensive objections to and arguments concerning the trial court's statement of decision, she does not on appeal squarely argue it suffers from any deficiencies. Accordingly, "[w]e view the facts most favorable to the judgment under the principle requiring us to presume the lower court's judgment is correct, and draw all inferences and presumptions necessary to support it. [Citations.] ' "Where [a trial court's] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." ' " (Chapala Management Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1535.) If Ries does not challenge the evidence supporting the court's factual findings, we are bound by them and do not review the evidence. (Rael v. Davis (2008) 166 Cal.App.4th 1608, 1617.) In that event, "we accept the facts set forth in the statement of decision, and determine whether those factual findings support the judgment as a matter of law." (Ibid.) As stated, we take other background facts from the trial testimony, and also view it in the light most favorable to the judgment.

Wolf immigrated to the United States from Yugoslavia as a child. He completed school to the eighth grade, and his native language was German. Wolf was not computer literate. He could read and write but he did not enjoy it and it took him a long time. He did not subscribe to magazines or read newspapers; even later in his life he had others close to him assist him with reading, banking transactions, writing checks and penning notes to Masters and Ries. At times Wolf would become "overwhelmed" by doctors' advice and his personal bills. Wolf worked as a butcher until he retired at age 65, after which he took jobs repairing machinery and driving a truck. On occasion he loaned others money. Close friends of Wolf's knew he kept between $10,000 and $50,000 in a safe in his house. He also maintained two bank accounts with over $100,000 in each. After Wolf's retirement, he obtained cash via his pensions, social security and rent from a tenant and friend, Gregory Hundtoft, who rented a room in Wolf's home. According to Hundtoft, the mortgage on Wolf's home was paid off.

Masters and Ries were born respectively in 1965 and 1971. After Wolf and their mother divorced in 1979, the girls lived with their mother, but the girls had a strained relationship with each other and did not spend time together outside their family home. Masters distanced herself from Ries because among other things, Ries spent time with unsavory people. In 1999, Ries was arrested after she bought a vehicle using someone else's name, and eventually pleaded guilty and served a prison term. At about that time, Masters moved to Oregon and got married, but visited California every summer. Ries, who eventually became a mother and also married, lived about 20 minutes away from Wolf. Though he was disappointed in Ries's past conduct, Wolf loved his daughters equally.

In support of her 2013 request for a preliminary injunction, Masters presented evidence that Ries had pleaded guilty in May 2001 to obtaining property by fraud (Pen. Code, § 532), false personation (Pen. Code, § 530), and forgery (Pen. Code, § 470, subd. (a)).

Between 2002 and 2012, Masters tried to make an effort to maintain a closer relationship with her sister at their father's wishes, and saw Ries once a year. Masters travelled to the Ventura Keys annually for vacations, and during those times visited Orange County for a few days. During those ten years, Masters had a close, respectful and trustworthy relationship with Wolf.

In mid-2000, Wolf experienced a mild heart attack and became concerned about his estate. He told Masters at that time that he wanted to make sure she knew what he had and that everything was to be divided equally between her and Ries. They talked about Wolf transferring his interest in his house to Masters so she could control it and share it with Ries. In approximately 2007, at Wolf's request, Masters sent him simple language she obtained from a mortgage lender friend that would transfer his house to Wolf and Masters as joint tenants.

In 2011, during a discussion with Masters's husband, Ries expressed she had "to keep an eye out for my inheritance." Later that year, Hundtoft and Wolf spoke about Wolf's estate plan. Wolf told Hundtoft he had two options for how he would handle his assets on his death: Masters would get one bank account worth over $100,000 and Ries would get the rest, or Masters would get nothing and Ries would get everything.

In early July 2012, Wolf, a long time smoker, received emergency care for chest pain and coughing up blood, and in mid-July his primary care physician discovered nodules in Wolf's lungs. He also contracted shingles, for which his physician prescribed hydrocodone, a narcotic pain medication, which when used with alcohol can cause drowsiness and impact a person's alertness and possibly comprehension. About that time, Wolf reported drinking three to four beers a day. That month, Masters spent three weeks in Southern California. She only knew Wolf was not feeling well; he told her he had hurt his back and was getting over a lung infection, so during those weeks she saw him only a few times but called and spoke with him every day. During a birthday party for Ries's stepchildren, Ries told Masters that her husband's brother-in-law, Donald Hunsberger, was the attorney she was trying to get to help their father do his will. She told Masters that Hunsberger would not charge Wolf, and Ries was "going to see to it that everything is divided equally . . . I promise." Masters thought the conversation was odd, and wondered why Ries was dictating to their father the division of his estate.

As of September 2012, doctors had diagnosed Wolf's condition as likely stage IV lung cancer. In early September 2012, Ries and Wolf came across Wolf's handwritten will while they were going through Wolf's papers. According to Ries the paper was prepared when Ries was nine or ten years old and written by Ries, Masters, and Wolf. It indicated that Wolf wanted his daughters to split things equally.

About a week later, on September 19, 2012, Ries arranged a meeting at her house between Wolf and Hunsberger. Wolf was still prescribed pain medication, but Hunsberger did not ask him about his prescribed medications. At that meeting, Ries filled out estate planning questionnaires for Wolf. Though Hunsberger understood then that Wolf had immigrated at a young age, had an eighth grade education, and had others assist him in banking and financial transactions, he did not discuss Wolf's ability to read. Ries was present for a few minutes at the meeting's outset, and during that time, Wolf asked to confirm that his first will was shredded.

Medical records show that Wolf's physician refilled Wolf's hydrocodone prescription on September 27, 2012, permitting a conclusion that Wolf was still taking the medication at that time.

During the meeting, Hunsberger noted that Wolf wanted a ten-year restriction on the ability to sell or borrow on his house so as to keep the funds available to his grandsons without being encumbered by loans. Wolf also made clear to Hunsberger that he had two safes, and wanted the contents of one to go to Ries and Masters to get the contents of the other, which was in a cement floor, with each daughter to get one-half of the safe combinations so they could review the contents together. Hunsberger had a sense that Wolf's estate was in the range of $1.5 to $2 million, but left the meeting concerned he had not obtained information about all of Wolf's assets. Hunsberger never completed a final calculation of the estate's worth. He never directly spoke with Wolf again after their meeting.

Hunsberger's associate, Sarah Brewsaugh, prepared the first draft of Wolf's estate planning documents based on Hunsberger's notes and forwarded them to Ries via e-mail on September 26, 2012. Brewsaugh did not communicate with Wolf about what he wanted or elicit his feedback on her drafts, as Hunsberger had instructed Brewsaugh to communicate only via e-mail with Ries. Indeed, Brewsaugh referred to Ries as the "client." The first draft of Wolf's trust gifted his house to Ries and her sons, and required the trustee to divide Wolf's remaining trust estate into "shares of equal market value" to distribute to Masters and Ries.

On October 2, 2012, Ries e-mailed Brewsaugh and instructed her to make several changes to Wolf's estate plan including to leave Masters only one-third of a $110,000 cash gift and a chess set, and to omit mention of the cement floor safe. Ries also wrote: "Please also add that the hand written paper will written by Christine Wolf-Ries, Allison Wolf-Masters and Adolf Wolf has been shredded by Adolf Wolf." Ries did not give a copy of her e-mail to Wolf. Brewsaugh made Ries's proposed changes and sent the amended documents back to Ries, who made additional changes.

This was reflected in a trust provision that left a Citibank account to Masters and her two sons, to be split in thirds between them and the children's funds placed in accounts under the Uniform Transfer to Minors Act. Master's one-third share would amount to approximately $37,000.

On October 10, 2012, Brewsaugh met with Wolf for about 45 minutes and went over the substantive provisions of the documents, but not the specific changes that Ries had made to the trust. Though Brewsaugh normally did not do so, at Hunsberger's request, she prepared a certificate of review in which she verified that she spent time with Wolf and the documents were "what he wanted." Hunsberger was not present. According to Brewsaugh, Wolf appeared tired but was not having trouble focusing, though she could not recall whether he was confused. Brewsaugh left the room and Ries and a notary entered before Wolf signed the documents. Ries, the notary and Wolf met for about an hour and a half, during which the notary went through the documents and discussed what Wolf was going to be signing. Ries did not know if Wolf had ever compared the original draft trust and the final trust page by page. Hunsberger was never told by anyone that Wolf had read the documents he signed. Afterwards, Ries and Wolf themselves insisted on taking the funding documents to the bank directly, which according to Hunsberger was "highly unusual," and not Hunsberger's usual practice.

The next day, Ries called Wolf's doctor and asked that he be taken off hydrocodone because it was making him sick. Five days later, Ries sought a hospice referral, and Wolf began in-home hospice care the next day.

Masters did not learn that Wolf had terminal cancer until October 17, 2012, after, unbeknownst to her, he had signed the estate planning documents. In November 2012, Wolf told Olivia Vasquez, a good friend who was helping him with food and medication, that he had done something he said he was not going to do, which was to leave Ries his house. Wolf was visibly unhappy about it. Vasquez was shocked, but did not speak with him about it further.

In December 2012, Masters called Wolf to check on his health, and Wolf told her he was leaving his house to Ries. Masters was shocked, reminding him that for years he had always said everything would be divided equally. Wolf responded that Ries had said if he left the house to both girls there would be nothing but arguing and fighting, which he did not want. When Masters suggested getting a third party to help, Wolf offered that she and Ries should work things out so they could share the house together. Masters called Ries about the matter; Ries told her that all the gold, cash and accounts were going to be divided equally but that Ries was getting the house and she was not going to change things. Ries hung up on Masters.

Masters thereafter told Wolf that Ries was not going to cooperate. Wolf became agitated and frustrated, and asked: "Is my last will the final one?" When she said yes, he responded he was going to rip up and rewrite his will, without telling anyone what was in it. Masters learned then that Wolf had prepared a will.

During the last few days of his life, Wolf told his brother Herb Wolf he wanted Ries to have his house because she was caring for him, and everything else was to be split equally between Masters and Ries, except for his Mercedes, which he wanted to go to Ries's son. Wolf's brother believed that Wolf had signed a document that divided his other assets equally between Masters and Ries.

Wolf died in January 2013.

Ten days after Wolf's death, Masters initiated a will and trust contest in the Los Angeles County Superior Court. The following month, Ries filed a petition under Probate Code section 850 in Orange County Superior Court in part seeking to confirm the validity of Wolf's trust and herself as its sole trustee. She alleged that four Citibank accounts of Wolf's listed in his schedule of trust assets were "inadvertently not transferred to [the] trust" and sought to have them declared trust assets. At some point, Ries filed a declaration in the court proceedings that misrepresented facts concerning the transfer of the accounts into the trust, and Hunsberger asked her to amend it to reflect the true circumstances.

The schedule of trust assets also listed a Downey Savings account ending in 5289, which account was assumed by U.S. Bank, as account ending in 2893. This account is the subject of Ries's appellate challenge to the trial court's inclusion of an injunction in the judgment.

Masters objected to Ries's petition and in April 2013 filed a petition for a trust contest in Orange County Superior Court. In part, Masters alleged that "all funds of the Decedent wherever held or deposited . . . should be administered, inventoried, and liquidated by a Special Administrator of the intestate estate of the Decedent . . . ." Masters's petition sought an order declaring Wolf's trust void or voidable as procured by undue influence or due to Wolf's lack of capacity, as well as a judgment quieting title to Wolf's personal residence to recover it for the benefit of Wolf's intestate estate.

The matter proceeded to a bench trial on Ries's Probate Code section 850 petition and Masters' cross-petition. Among other witnesses, Masters presented testimony from estate planning and probate attorney Todd Litman, who testified that in view of the unequal distribution between Wolf's children, Hunsberger and Brewsaugh took inadequate safeguards to eliminate or reduce a claim of undue influence. He testified that when Hunsberger determined his relative was getting a distribution, he should have declined to prepare the trust, and he should not have conducted the meeting at Ries's home, but at his office. Attorney Litman would have had an independent review done by an independent law firm. He criticized Hunsberger for failing to ask probing questions or make sure Wolf was the only person he spoke with, and permitting communication via e-mails between Brewsaugh and Ries. Litman pointed out that there was no indication the final trust document was delivered to Wolf.

At trial, Ries denied recalling many important matters: she claimed she could not remember whether her father considered the piece of paper with his wishes to be a will. She could not recall whether Wolf said anything about Masters complaining about the unequal treatment in his will and trust and was unsure about whether she and Masters discussed his estate plan. She could not recall if Wolf was with her when she instructed attorney Brewsaugh to make changes to his draft will and trust. Ries also initially testified she only made "mental" notes of her and Wolf's conversations about the changes to his estate documents, but at trial, she claimed she made written notes but could not say what happened to them. Ries recalled Masters telling her she was upset that it was not an equal division, but could not remember her own response.

Following trial, Masters and Ries submitted written closing arguments as well as a joint statement of controverted issues on the petitions. In part, the joint statement asked the court to decide "[w]hether [Ries] proved by clear and convincing evidence that the Trust and Will were not the result of her exerting undue influence on [Wolf]" and make findings about the state of Wolf's condition and understanding of his testamentary act on October 10, 2012, the day he signed the estate documents. The court issued a ruling and response to the joint statement of issues, and ordered Masters to prepare a statement of decision. Ries lodged extensive objections to Masters's proposed statement of decision.

The court's statement of decision includes legal analysis and detailed factual findings concerning the presumption of undue influence, recounting Masters's evidence on the relevant standards including as to how Ries unduly benefited under Wolf's trust and will, why Masters's evidence shifted the burden of proof to Ries, and whether Ries's evidence rebutted the presumption. The court expressly found Ries's testimony on the issue of undue influence "not credible." It set out additional evidence that it found relevant to its decision with regard to Hunsberger's and Brewsaugh's actions, including Litman's opinion that the attorneys' actions fell below the standard of practice in their preparation of the trust and will and in preventing the exercise of undue influence over Wolf. The court found the evidence insufficient, and there was a corresponding "failure of proof," to make findings concerning Wolf on October 10, 2012, as to his intent; his understanding of his testamentary act or the nature and situation of his property; whether he suffered from a mental disorder that caused him to divide his property in a way he otherwise would not have done; whether he was alert and attentive; whether he was under the influence of medication; and whether he was able to process information and had functional thought processes.

Finding Masters the prevailing party and awarding her costs, the court entered judgment declaring Wolf's purported trust and will void and ordering Wolf's estate to pass to his heirs by the California law of intestate succession. Among other orders, it ordered title to Wolf's residence quieted into his name and the home administered by the intestate estate. The court denied Ries's Probate Code section 850 petition in its entirety, ruling that Wolf's four Citibank accounts be re-titled as pay-on-death accounts for the benefit of Masters.

After unsuccessfully moving for a new trial and to vacate the judgment, Ries filed the present appeal.

DISCUSSION

I. Trial Court's Findings Relating to Ries's Undue Influence

A. Legal Principles and Standard of Review

The underlying principles relating to undue influence are applicable to both wills and living trusts. (See Rice v. Clark (2002) 28 Cal.4th 89, 96, citing Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182 [legal principles governing undue influence apply to inter vivos trusts].) "As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.] [¶] This presumption can be overcome if it is shown that the testator was affected by undue influence." (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604 (Sarabia), superseded by statute as stated in Rice v. Clark, supra, 28 Cal.4th at p. 97; see also David v. Hermann (2005) 129 Cal.App.4th 672, 684; Prob. Code, § 6104 [any part of a will procured by undue influence is invalid].)

"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, supra, 28 Cal.4th at p. 96.) Direct evidence of undue influence is rare (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355), and thus courts normally determine its existence by inference from the totality of facts and circumstances. (David v. Hermann, supra, 129 Cal.App.4th at p. 684; Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 451.) The person contesting a trust bears the burden of proving undue influence. (See Prob. Code, § 8252, subd. (a) ["contestants of the will have the burden of proof of . . . undue influence"]; Rice v. Clark, supra, 28 Cal.App.4th at p. 96.) But " 'under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence." (David v. Hermann, at p. 684; see also Rice v. Clark, at pp. 96-97.) This common law presumption of undue influence arises if the challenger shows "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, at p. 97; see also Bernard v. Foley (2006) 39 Cal.4th 794, 800; David v. Hermann, at p. 684.)

Probate Code section 21380 (formerly section 21350) is applicable to instruments that became irrevocable on or after January 1, 2011 (Prob. Code, § 21392; Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128, 1137). The statute sets forth a statutory presumption of undue influence that supplements the common law presumption. (Rice v. Clark, supra, 28 Cal.4th at p. 97.) It "precludes care custodians from being beneficiaries of testamentary transfers from dependent adults to whom they provide care services, as well as barring similar transfers to other 'disqualified persons.' " (Estate of Winans (2010) 183 Cal.App.4th 102, 113.) The statutory presumption may be rebutted "by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence." (Prob. Code, § 21380, subd. (b); see In re Estate of Pryor (2009) 177 Cal.App.4th 1466, 1472.) Blood relatives such as Ries are excluded from this statute, however: Probate Code section 21382 provides in part that Probate Code section 21380 does not apply if the transfer is to a person related by blood to the transferor or if the instrument is drafted by a person related by blood to the transferor. (Prob. Code, § 21382, subds. (a), (b).)

Whether the common law presumption of undue influence arises and was rebutted are questions of fact that we review for substantial evidence. (Sarabia, supra, 221 Cal.App.3d at p. 605; see Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1060, disapproved on other grounds by Bernard v. Foley, supra, 39 Cal.4th at p. 816, fn. 14; Estate of Auen (1994) 30 Cal.App.4th 300, 311 ["We review the trial court's finding that appellants failed to rebut the presumption of undue influence under the substantial evidence rule like any other issue of fact"], superseded by statute on other grounds as stated in Rice v. Clark, supra, 28 Cal.4th at p. 97.) On this inquiry, "we follow established rules of appellate review: We view factual matters most favorably to the prevailing party and in support of the judgment. We defer issues of credibility to the trier of fact. Additionally, we resolve all conflicts in the evidence in favor of the respondents. [Citation.] Our power 'begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion' reached by the trier of fact." (Estate of Auen, at p. 311.) If the court's ruling is right on any theory of law applicable to the case, it must be sustained regardless of the court's reasoning. (David v. Hermann, supra, 129 Cal.App.4th at p. 685.) B. Masters Presented Substantial Evidence of Ries's Undue Benefit or Profit from the Trust

In its statement of decision, the trial court found Ries had a confidential relationship with Wolf and was actively involved in procuring his trust. On the issue of undue profit or benefit, the court found: "[Wolf] loved [Ries] and [Masters] equally and did not favor one daughter over the other, even though he was disappointed in [Ries's] life style and her inability to manage money. . . . [Wolf] annually vacationed or visited [Masters] and her family and spoke with [Masters] regularly. In 2012, [Masters] visited [Wolf] on three occasions. [Masters] had been told by [Wolf], on numerous occasions throughout the years, that his estate would be divided equally between his two daughters. [Ries] told [Masters] the same thing in July, 2012. Under the terms of the Trust, [Masters] was to receive only a chess set of nominal value and $37,000. Under the Trust, [Ries] was to receive: ownership with the right to buy out her minor sons' interests in [Wolf's] free-and-clear residence . . . valued at between $400,000 and $500,000, a $160,000.00 certificate of deposit at U.S. Bank, the contents of the Residence, including a safe and every other piece of personal property." The court further found that "before the Trust was created, [Wolf] had a handwritten Will that had existed for approximately 30 years [that] provided: 'I, [Wolf], would like my daughters to split . . . equally[.'] That Will was consistent with what [Masters] had always been told by [Wolf] prior to the execution of the Trust and Will and also what [Ries] told [Masters], which was that their father's estate would be divided equally between his two daughters."

Ries does not challenge the court's findings as to her confidential relationship or active procurement. She contends only that the court's finding she unduly profited from the will and trust lacks substantial evidence, and that the court erred by shifting the burden to her to prove the absence of undue influence. Ries argues, without citation to authority, that the court's conclusion as to undue profit or benefit is a mixed question of fact and law. According to Ries, the court's findings in support of its ruling—that Wolf equally loved his daughters and told Masters on numerous occasions that his estate would be divided equally between them, and that Masters was to receive $37,000 and a chess set while Ries was to get his house with its contents and an account worth $160,000—is insufficient as a matter of law to prove undue benefit. She asks this court to direct judgment be entered in her favor, or alternatively that we remand the matter and direct the court to reconsider the issues applying the correct test.

Ries's contentions are based in large part on language from Sarabia, supra, 221 Cal.App.3d 599 as well as the outcome of Estate of Shay (1925) 196 Cal. 355. The issue in Sarabia, involving a will challenge on grounds of undue influence, was whether the trial court erred by failing to instruct the jury that the concept of undue profit had a "purely quantitative definition." (Sarabia, at p. 603.) The court rejected the will contestant's claim that the word "unduly" meant "nothing more than that the beneficiary takes substantially more under the will he procured than he would otherwise have taken" (id. at p. 605), despite authority suggesting that the question was solved by looking only to the terms of the will. (Id. at pp. 606-607.) It reasoned: "For the trier of fact to decide what influence was 'undue' clearly entails a qualitative assessment of the relationship between the decedent and the beneficiary; to know what influence was 'undue' requires knowledge of what influence, if any, would qualify for a more benign interpretation. '[I]nfluence which reaches the stage of being undue influence is not at all the same in every case. In one case it takes but little to unduly influence a person; in another case much more . . . . Accordingly, every case must be viewed in its own particular setting.' [Citations.] If the trier of fact is empowered to check for 'unnatural' provisions of the will as an indicator of undue influence [citation] it follows as a matter of simple corresponding logic that the trier is empowered to decide what would constitute natural provisions. 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. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent's testamentary disposition. [Citation.] That evidence may include dispositional provisions in previous wills executed by the decedent [citation] or past expressions of the decedent's testamentary intentions. [Citation.] It may also encompass a showing of the extent to which the proponent would benefit in the absence of the challenged will. [Citation.] If these factors are proper for consideration, it is therefore patently simplistic to say that the issue of undue profit is to be 'solved by the terms of the will itself.' " (Sarabia, at pp. 607-608.)

In Estate of Auen, supra, 30 Cal.App.4th 300, the court pointed out that the Sarabia court's analysis was not so narrow as to limit a court's undue benefit analysis to determining who between the proponent and contestant were the more obvious objects of the testamentary disposition. (Id. at p. 311.) It rejected a contention that the trial court in that case improperly relied on evidence of " 'general influence' " to find undue benefit. (Ibid.) The appellate court in Auen upheld the trial court's finding of undue benefit based on evidence that an attorney exploited her close relationship with the decedent to obtain undue benefits, exercised "control and manipulation" over the decedent in business dealings involving the decedent's most valuable asset, and actively participated in the decedent's will. (Id. at pp. 306, 311-312.) It also looked to evidence that members of the attorney's family and friends received substantial gifts, and the fact the contestant charitable organizations were the primary beneficiaries under a prior will. (Id. at p. 312.) Auen establishes that the court's inquiry is broad, and even evidence of the proponent's active participation in the creation of a will—an issue undisputed in Auen (Auen, at p. 311, fn. 6), as in this case—may be considered on the issue of undue benefit.

We see nothing in the court's ruling indicating that it engaged in a merely quantitative or overly limited analysis on the question of Ries's undue benefit. Rather, accepting the evidence in Masters's favor compels us to uphold the court's finding of undue benefit. As we have summarized extensively above, it shows Wolf for years expressed his intent to divide his estate equally between the two daughters, and had what he considered to be a will doing just that. The evidence shows Wolf destroyed that will when he and Ries came upon it after learning of his cancer diagnosis, and thereafter Wolf changed his will and trust with Ries's assistance, participation and control to give Ries a substantially larger share of his assets, including his residence. The new estate documents were initially discussed with attorney Hunsberger at a time when Wolf was on narcotic pain medication, and Ries later directed attorney Brewsaugh to make material changes to the trust—including to change the disposition of Wolf's remaining trust estate from equal shares to limit Masters' share to $37,000—via an e-mail that she did not share with Wolf. Wolf's intent as reflected in Hunsberger's notes, including his desire to give Masters the contents of one of two safes, differs from that reflected in the final estate planning documents. On the day Wolf signed the documents, Brewsaugh only generally confirmed with Wolf that they were what he wanted but did not go over the specific changes with him, and afterwards, Wolf expressed regret at what he had done.

Ries argues that there is no evidence that Wolf told Masters "numerous times" throughout the years that he wanted his estate to be divided equally between his two daughters. But Masters's testimony that in July 2012 Ries promised everything would be divided equally, as well as Masters's testimony that she reminded Wolf in December 2012 that he had always said his estate would be equally divided between her and Ries, permits a reasonable trier of fact to infer that was the case. Ries points out in her reply brief that she testified the handwritten piece of paper Wolf shredded was not a will, and she asserts that Masters never demonstrated it was a will. Ries states that a piece of paper with only the sisters' signatures "could not be any type of valid will as a matter of law." But there is contrary evidence via Ries's e-mail to attorney Brewsaugh that Ries herself characterized the document as a will, and the document was written in part by Wolf and contained his name. (See In re Estate of Williams (2007) 155 Cal.App.4th 197, 207.) The question relevant to the court's undue benefit finding is whether a reasonable trier of fact can infer that the paper reflected Wolf's intentions about how he wished to dispose of his estate.

Ries's discussion of the issue at times misrepresents the record, and is based largely on a one-sided summary of the evidence that would have supported a different factual conclusion. Her recounting of the facts views the evidence and draws inferences in her favor. (See footnote 8, infra.) Ries argues it is inaccurate to say that Masters was to receive only $37,000 from Wolf's will because Masters and her sons were to receive "the entirety" of Wolf's approximately $110,000 account. But the trust provides that the account was to be divided equally between Masters and her sons and the sons' shares placed in accounts under the California Uniform Transfers to Minors Act (Prob. Code, § 3900 et seq.) until they reached age 25, leaving Masters with only one third of the account. Ries additionally maintains that in view of evidence that she cared for her father in his final days, the court could only conclude his final will and trust were completely natural and did not reflect undue benefit, akin to the circumstances in In re Estate of Shay, supra, 196 Cal. at page 363. The issue of undue benefit, however, is not resolved solely on whether the will is natural or unnatural. (See Estate of Peters (1970) 9 Cal.App.3d 916, 921.) And there is evidence to the contrary as to Ries's care: Wolf's long time physician could not recall Ries being with Wolf at any of his appointments, and Masters testified that when Wolf suffered a heart attack years earlier, Ries refused to take him to the emergency room. Karl Mangold, Wolf's brother-in-law who lived close to Wolf, testified that before and around November 2012, Wolf expressed anger about Ries several times because she would not answer his calls for two or three days, and Wolf told Mangold if he had an emergency, he would die before Ries answered the phone. Wolf's friend Olivia Vasquez testified that in late December 2012 a hospice nurse told a social worker that Ries was not cooperating in Wolf's care by administering the required dosages of medicine. On our review for substantial evidence, we " ' "ordinarily look[] only at the evidence supporting the successful party, and disregard[] the contrary showing." ' " (Estate of Baker (1982) 131 Cal.App.3d 471, 476-477.) The existence of contrary evidence that Ries participated in Wolf's care is immaterial to the question of whether substantial evidence supports the court's undue benefit finding.

Ries further suggests that undue benefit findings generally are made where a will has given the bulk of an estate to a nonfamily member or someone would not have received an inheritance absent the will. But an undue benefit finding is not precluded by the fact this case involves two siblings, and cases involving nonfamily members, as Estate of Auen, supra, 30 Cal.App.4th 300, are instructive on the type of evidence that is relevant to the question. Like in Auen (30 Cal.App.4th at pp. 306, 311-312), evidence that Ries actively helped to procure and directed changes to Wolf's trust documents, which then favored her significantly over Masters, is properly considered on the issue of undue benefit. Finally, evidence by itself that Wolf for a long period of time expressed intent to treat his daughters equally in his will, but then was assisted by Ries in preparing a will and trust that left substantially more to Ries contrary to that prior intent, constitutes substantial evidence supporting a finding that Ries unduly benefitted for purposes of meeting the presumption of undue influence. (See Estate of Gelonese (1974) 36 Cal.App.3d 854, 866-867 [evidence was sufficient to sustain the determination that a will would result in undue profit to the proponents where it showed it did not treat the decedent's children equally and there was evidence, though conflicting, that the decedent wanted them to share equally in her estate], citing Estate of Garibaldi (1961) 57 Cal.2d 108, 113 [evidence sufficient to show undue profit where "[c]ontrary to the repeatedly expressed desire of decedent that her children should share her property equally, each proponent would receive substantially more under the will than each contestant"]; compare Estate of Goetz (1967) 253 Cal.App.2d 107, 117 [absence of evidence that the testatrix made any declarations of intent at variance with the terms of the will demonstrates insufficiency of proof to show undue profit].)

Finally, Ries argues the trial court found the evidence was insufficient for it to determine whether Ries unduly profited from Wolf's estate plan, demonstrating that Masters failed in her burden of proving undue profit. But again, the record does not support the argument; the court in fact made specific findings in both the joint statement of controverted issues and its statement of decision that Masters had shown Ries " 'unduly' benefitted under the Trust and Will." Ries points to a separate inquiry on which the court found a failure of proof: the parties had asked whether Ries unduly profited "given the quality of [Wolf's] relationship with her as compared to his relationship with [Masters]" to which the court responded it was "unknown" and that the court could not decide the issue "as of the date [Wolf] executed the Trust and Will on October 10, 2012 . . . ." The court made clear the evidence was insufficient to make that requested finding, and its responses are not inconsistent in view of the conditional nature of the latter inquiry.

Because Masters presented sufficient evidence of Ries's undue benefit under Wolf's will and trust, the burden shifted to Ries to rebut the presumption. C. Ries Invited Error as to the Standard of Proof on Whether She Rebutted the Presumption

Ries contends that even if the presumption of undue influence applied and the burden of proof shifted to her to prove she did not unduly influence Wolf, the court prejudicially erred by applying an incorrect clear and convincing standard of proof upon her to rebut the presumption. Masters responds that Ries's counsel agreed that Ries had to overcome the presumption by clear and convincing evidence, and that as a result, she is judicially estopped from reversing her position in this appeal, bound by her judicial admission on the point, and barred from raising the argument under the invited error doctrine. Masters further argues on the merits that in fact, clear and convincing evidence is required to overcome the presumption of undue influence, but under any standard of proof Ries was the only witness who testified that the trust and will expressed Wolf's contentions and the court discredited her testimony.

We need not decide whether a clear and convincing evidence standard applies to overcome the presumption of undue influence. Here, Ries's counsel agreed with Masters's closing argument assertion that that standard of proof applied on the question, and then proposed jointly with Masters's counsel the clear and convincing standard in their statement of controverted issues. Under those circumstances, we agree Ries invited any error by the court in applying that standard. Under the doctrine of invited error, if a party's conduct induces the commission of an error, the party is estopped from claiming on appeal that the judgment should be reversed because of that error. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) "[A]n appellant 'cannot complain of error [it] personally "invited." In other words, one whose conduct induces or invites the commission of error by the trial court is estopped from asserting it as a ground for reversal on appeal.' " (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000.) Where, as here, counsel proposes and prepares what amount to findings that the court eventually adopts, counsel cannot thereafter complain about their adequacy or correctness. (See e.g., Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420-421 [where counsel drafted an order that they claimed was erroneous on appeal, they were estopped from complaining because they participated in the error's commission], overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Bakersfield Community Hosp. v. Department of Health (1977) 77 Cal.App.3d 193, 201 [party invited error of findings and conclusions it had prepared]; Smith v. Royal Mfg. Co. (1960) 185 Cal.App.2d 315, 320; Johnson v. Rich (1957) 150 Cal.App.2d 740, 747.) Ries does not establish that the court directed the parties to prepare the statement of controverted issues or that the statement was not the product of her own counsel's judgment, which would preclude application of invited error. (See Estate of Davis (1990) 219 Cal.App.3d 663, 670, fn. 13; City of Salinas v. Homer (1980) 106 Cal.App.3d 307, 310.)

Nor does Ries's characterization of her counsel's conduct persuade us. She maintains in reply that though her attorney first stated his belief that the clear and convincing evidence standard applied, he thereafter told the court it was a preponderance of evidence standard. Ries also maintains the doctrine of invited error does not apply when counsel acquiesces to a statement of law after objecting, and that her counsel did not induce the court to apply the burden it did, but argued the correct burden in Ries's trial brief and never gave any "authority nor any assurance he was adopting that position." These assertions are unsupported by the record, which shows that regardless of Ries's counsel's initial position, he did not object to the court's statement of what Masters asserted in her closing argument was the relevant standard of proof. And as to her counsel's statement following trial concerning the preponderance of the evidence standard, the record shows he in fact was articulating the standard of proof required for Masters to shift the burden to his client to rebut the presumption. D. The Record Supports the Court's Finding that Ries Did Not Rebut the Presumption of Undue Influence

"The court: What do you consider to be the burden of proof on [Masters] [sic] to overcome the presumption of undue influence? [¶] [Ries's counsel]: Well, I think [Masters] has to show the two elements of undue influence . . . . [¶] The court: Do you consider the burden of proof to be clear and convincing evidence or preponderance of the evidence? [¶] [Ries's counsel]: I think to shift the burden it's—I'd have to double check, but I think it's preponderance. I think they have to establish by a preponderance of the evidence that the burden shifts." (Italics added.)

Ries contends that if she bore the burden of proving Wolf's will and trust was not the product of undue influence, the court's finding that she failed to rebut the presumption is unsupported by substantial evidence. Specifically, she maintains the record is absent evidence Wolf lacked volition for his testamentary act, pointing to Masters's own testimony that Wolf told her he was leaving his house to Ries, and emphasizing that even after Wolf stated he would tear up the will and write a new one, he did not change his mind, keeping its dispositions in place. Ries cites her own testimony, as well as evidence that Wolf was a stubborn man who was not easily persuaded to do things he did not want to do, and Masters's testimony that Wolf told her he was leaving his house to Ries. Ries points to testimony from Mary Chavez—a friend of Wolf's who was bequested $10,000 in the October 2012 trust—that Wolf had stated at some point in the previous 14 years that he wanted to give Ries his house. She points to attorney Brewsaugh's and the notary's testimony that they verified the documents were "what [Wolf] wanted" and he understood what they were and that when Brewsaugh mentioned the possibility of hurt feelings over the trust and will, he told her Masters was getting "a bit more" from her mother and Ries was taking care of him.

The trial court found that Ries failed to introduce either clear and convincing, or credible, evidence to overcome the presumption that she unduly influenced Wolf in connection with his trust and will. Emphasizing that it had observed the demeanor of the witnesses and considered their interests, biases, motive and believability, the court found Ries's evidence in fact demonstrated that the trust and will "did not express [Wolf's] expressed intent (which itself was not proven by [Ries]), as communicated by [Wolf] to [Ries's] witnesses who were themselves inconsistent and contradictory (Mary Chavez, Greg Hundtoft, Herb Wolf, Valerie Barrett, Hunsberger and [Brewsaugh])." The court then summarized the evidence from the identified witnesses and explained why Ries's testimony as to Wolf's intent was not credible.

"The presumption of undue influence may be overcome by other circumstances which show affirmatively that the decedent's volition accompanied the testamentary act. The indicia of undue influence may be explained and rebutted by the testimony of persons who were present at the time the instrument was executed, by proof that the decedent gave instructions for the preparation of the script, and by evidence showing that he subsequently affirmed or expressed approval of its provisions." (Estate of Merrick (1949) 93 Cal.App.2d 624, 627; Estate of Gecht (1958) 165 Cal.App.2d 431, 444-445.) As we have stated, whether the presumption was dispelled was a question of fact for the trial court, which was the sole judge of the credibility of Ries's witnesses and the weight of the evidence. (Estate of Auen, supra, 30 Cal.App.4th at p. 311; Merrick, at p. 628; Gecht, at p. 444; see Estate of Washington (1953) 116 Cal.App.2d 139, 145.)

In Estate of Gecht, for example, the appellate court affirmed a trial court's finding that the evidence overcame any presumption of undue influence in a case where the decedent, though having a son and daughters, left the bulk of his estate to his brother. (Estate of Gecht, supra, 165 Cal.App.2d at p. 433.) To draft his will, the decedent used an attorney, Daniel Sobel, who was his brother's son-in-law. (Id. at pp. 438, 440.) The evidence supporting the court's finding showed that "when the decedent requested Sobel to prepare a will he asked whether he would not prefer to have another lawyer undertake the task, and the decedent replied that he wanted him to do so. [The decedent] thereupon dictated to Mr. Sobel the terms of the will, following which a draft was prepared and submitted to the decedent. This was gone over and changes were discussed in the presence of another attorney . . . and the will was redrawn to conform to the changes indicated by the decedent. There is no testimony that Mr. Sobel or [the decedent's brother] or any member of the latter's family at any time made any suggestions to the decedent as to the disposition which he should make of his estate and [the brother] did not learn of the contents of the will until after the testator's death." (Id. at p. 445.) The appellate court further pointed out that there was no showing of pressure that overpowered the decedent's mind and volition at the moment of the will's execution. (Ibid.)

Similarly, in Merrick, the appellate court considered whether sufficient evidence supported the court's finding a will was free from undue influence and whether the evidence established the presumption of undue influence was overcome and that the will was the testatrix's free and voluntary act. (Estate of Merrick, supra, 93 Cal.App.2d at p. 625.) In Merrick, two witnesses testified that the decedent's son read the will, the decedent stated it was what she wanted and she signed by mark, and asked them to witness the will. (Id. at p. 626.) Both witnesses testified the decedent was able to talk and appeared to understand what she was doing. (Ibid.)

Here, unlike Gecht and Merrick, the trial court found Ries did not rebut the presumption of undue influence in the face of highly conflicting evidence on the issue. In particular, it found Ries's witnesses' testimony was inconsistent, contradictory, and did not demonstrate Wolf's intent was reflected in the October 2012 will and trust. The question on our review is not whether Ries's evidence supports a contrary finding, but whether there is substantial evidence, believed by the trial court, to support the finding it made. We do not reweigh the evidence, reevaluate credibility or resolve the conflicting evidence. As with her discussion of the undue benefit prong of undue influence, Ries in her appellate brief points to evidence and draws inferences in her favor to show that there was "no substantial evidence Wolf's volition did not accompany the testamentary act." She asserts that Wolf "still had his mental capacity in October when he executed the documents, and also in December, when he affirmed to [Masters] his intent was to leave the house to [Ries]."

Ries cites no evidence for the latter assertion as to Wolf's mental capacity on the date he signed his estate documents, and indeed, the trial court found a failure of proof on that issue, which had shifted to Ries to prove. Further, the court's finding that Ries lacked credibility finds support in Ries's prior criminal history, her filing of a false declaration in the matter, and the voids in her testimony alone; we do not revisit its credibility determinations. Evidence pertaining to the disposition of Wolf's house does not shed any light on the influence exercised by Ries over other items in Wolf's estate or Wolf's estate in general. And Ries ignores evidence from expert Litman, Vasquez and Masters from which the court could conclude that Wolf was not fully and carefully advised concerning his will or asked probing questions about his intent or prescription medications, and that he later regretted his decision to give Ries his house, threatening to destroy the October 2012 will. The evidence permits a conclusion that Wolf did not "affirm[ ] or express[ ] approval of" (Estate of Merrick, supra, 93 Cal.App.2d at p. 627) the trust's provisions after he signed it. And the evidence supports the court's finding that Ries failed to prove Wolf in fact appreciated or comprehended the details of his disposition on October 10, 2012; general testimony from Brewsaugh and the notary that Wolf understood the nature of the documents he was signing did not establish that Wolf knew precisely what he was giving Ries on that day, particularly where the evidence showed Wolf could get "overwhelmed" in dealing with doctors and paperwork; he was taking a narcotic, hydrocodone, during that time; he was not fond of reading; and Ries previously directed changes to the trust via an e-mail that she did not share with her father.

II. Disposition of Wolf's Mercedes Benz Vehicle

Ries contends that regardless of the court's undue influence findings, this court must uphold the disposition of Wolf's Mercedes Benz vehicle to her son. She asserts that that portion of Wolf's trust and will is supported by the evidence of attorney Hunsberger's notes reflecting Wolf's wishes, as well as testimony from Vasquez and Herb Wolf about Wolf's intent concerning the vehicle. Ries relies on the uncontroversial proposition stated in Estate of Webster (1941) 43 Cal.App.2d 6, 15, that portions of a will unaffected by undue influence should be sustained "if . . . not inconsistent and can be separated from the part which is invalid . . . ." (See also Estate of Auen, supra, 30 Cal.App.4th at pp. 313-314; Estate of Molera (1972) 23 Cal.App.3d 993, 1001.)

Masters responds that Ries did not make this argument before, during or after trial but raises it for the first time on appeal, and thus she has forfeited it. Masters correctly points out that in Estate of Webster, supra, 43 Cal.App.2d 6, the jury made findings that specific devises were not the product of undue influence, which did not occur in this case.

Masters is correct. As we have explained, whether a will or trust, or portions thereof, has been procured by undue influence is a question of fact that the fact finder—the court or jury—must determine based on all of the facts and circumstances. (See Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1355; In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 734, fn. 11.) Whether a party has made such a showing must be decided in the first instance by the court or jury sitting as the trier of fact, not the appellate court. (See Estate of Gelonese, supra, 36 Cal.App.3d at p. 863.) Here, the court as the trier of fact was not asked to, and did not, specifically consider whether Wolf's disposition of his Mercedes vehicle to Ries's son was free from Ries's undue influence, or whether his gift of the vehicle was not inconsistent with and could be separated from the invalid parts. (Estate of Auen, supra, 30 Cal.App.4th at p. 314.) Rather, the court found only that Reis's undue influence permeated the entire trust and will, rendering them void. Our role is not to decide facts, but only to determine whether the findings actually made by the trier of fact are supported by substantial evidence. Ries's failure to request and obtain a finding on this particular issue disposes of it. That she may have presented evidence below supporting such a finding is of no moment. The forfeiture doctrine applies not only when a litigant fails to present evidence supporting an argument, but also when a party raises a new theory on appeal that "depends on controverted factual questions whose relevance . . . was not made to appear" at the trial court level. (See Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780; Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 996.) Here, Ries failed to present this particular argument to the court when it considered her petition and Masters's cross-petition. As a result, Ries cannot raise it for the first time on appeal.

III. Injunction Over Wolf's U.S. Bank Account

A. Background

In March 2013, after Ries filed her petition to confirm Wolf's trust, Masters sought a temporary restraining order (TRO) freezing Wolf's trust and estate assets during the pendency of the will and trust contest. In part, she alleged there was a risk that Ries would make the trust assets in her possession and control unavailable for distribution. Masters further argued that a preliminary injunction was necessary to maintain the status quo to preserve the estate's assets in Ries's possession and control, and to prevent Ries from spending, transferring or depleting the funds.

Ries opposed Masters's application. She asserted that two bank accounts—a Citibank account with a balance of $111,488,39 having a pay-on-death provision to Masters, and a U.S. Bank account with a balance of $161,321.48—were both listed as trust assets. Ries stated she had not sought to transfer the U.S. Bank account to the trust out of concern a certificate of deposit would lose its interest rate and result in a penalty, and she argued that even if that account was a trust asset, a provision in the trust gave it 100 percent to her.

On April 29, 2013, the court issued an order freezing the two accounts.

During trial, Ries's counsel made clear that the purpose of Ries's Probate Code section 850 petition was to bring the asserted pay-on-death accounts into Wolf's trust. Ries discussed the U.S. Bank account in her written closing argument, pointing out it was listed on a schedule of trust assets and arguing it was originally titled outside of the trust as a pay-on-death account to Ries, but because she was also the sole beneficiary of the account, it was not essential that that account be placed in the Trust to effectuate Wolf's intentions. The parties' joint statement of controverted issues asked the court to determine "[w]hether [Wolf] intended the CD at U.S. Bank to go to [Ries] through the Trust." The court ultimately ruled it was "unknown" whether Wolf had such an intent. After denying Ries's Probate Code section 850 petition and granting Masters's cross-petition, the court in its final judgment adopted language proposed by Masters that made the April 29, 2013 restraining order over the U.S. Bank account "permanent until such time as the Los Angeles County Superior Court enters its final Order distributing the Estate of Adolf Wolf under the State of California laws of intestate succession . . . . "

Ries moved for a new trial and alternatively to vacate the judgment in part on grounds the court awarded excessive damages in that the restraining order should not have been imposed on the U.S. Bank account because "[p]ay-on-death accounts do not go through probate." She also argued the court's decision had an incorrect legal basis as it failed to find Wolf's intent as to the U.S. Bank account. B. Contentions

Ries contends the trial court violated her right to due process notice by including in its final judgment the injunction freezing the U.S. Bank account, which she characterizes as a "pay-on-death" account. She argues the issue of the U.S. Bank account was not raised in the pleadings or at trial, and was not "affected by the validity of Wolf's estate plan." She maintains that as a result there was no legal or factual basis for the court's order freezing the account and that portion of the judgment must be vacated. She further argues her pay-on-death account was unaffected by an invalid will and trust. For the latter proposition, Ries cites Probate Code sections 5403 and 5302, subdivisions (a) and (b). C. Analysis

Probate Code section 5403 provides in part that "[a]ny [pay-on-death] account may be paid, on request and according to its terms, to any original party to the account." Under Probate Code section 5302, "[f]unds remaining in a joint account with a right of survivorship belong to the surviving party upon the death of a party to the joint account 'as against the estate' absent clear and convincing evidence the parties intended otherwise. ([Prob. Code,] § 5302, subd. (a).) Funds remaining in an account which provides for payment on death are likewise not subject to probate. ([Prob. Code,] § 5302, subd. (b).)" (Estate of Petersen (1994) 28 Cal.App.4th 1742, 1751.) --------

Ries's contentions are without merit. As a threshold matter, they rest on several flawed premises. The TRO proceedings made Ries aware before Masters filed her cross-petition that Masters's concern was to preserve the U.S. Bank account and others until their final disposition. In her reply brief on appeal, Ries maintains Masters sought an injunction only until her cross-petition was resolved and that the trial court limited its grant of relief accordingly, preventing Ries from having notice the injunction could extend after the will and trust contest was adjudicated. But Ries mischaracterizes the trial court's orders. In fact, the trial court's tentative ruling enjoined actions regarding the U.S. Bank account "[p]ending the trial of this petition or further order of the court . . . ." (Italics added.) Its final order was not even that restricted, ordering the account frozen "until further order of this Court."

And Ries's claim that the U.S. Bank account was absent from Masters's pleadings or not placed in issue at trial is unsupported by the record. Ries conceded below that the account was expressly identified as a trust asset, and Masters's cross-petition sought to invalidate the trust in its entirety and have Wolf's estate—including his bank accounts and personal possessions—pass through intestate succession. In addition to the specific relief of declaring Wolf's will and trust void, Masters asked the court "[f]or such other and further relief as the Court may deem just and equitable." The parties prepared a joint statement asking the trial court to resolve Wolf's intent with regard to this specific account, thus Ries could not have been surprised by the court's consideration of Masters's request and its inclusion in the judgment. Masters's pleadings gave Ries ample notice that any trust asset, including Wolf's U.S. Bank account, would be subject to probate if Masters prevailed.

Ries's contention on appeal that Masters's trust contest did not impact the U.S. Bank account rests on her assertion that the account is pay-on-death. But Ries's claim is just that, a mere assertion. She points to no evidence presented during either the TRO proceedings or at trial that supports her claim about the nature of this account. During the TRO proceedings Ries merely claimed in her declaration opposing Master's request that Wolf's trust contained a provision awarding the U.S. Bank account to her. But the court's invalidation of Wolf's will and trust likewise invalidated that provision, and it was for Ries to demonstrate the account should nevertheless pass to her regardless of Wolf's estate plan.

In view of the foregoing circumstances, we reject Ries's contention that she was denied her right to due process by the trial court's decision to extend the injunction in the judgment. Due process requires that a party be given notice and an opportunity to be heard. (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1072; In re Marriage of O'Connell (1992) 8 Cal.App.4th 565, 574.) Further, due process "requires affording a litigant a reasonable opportunity, by continuance or otherwise, to respond to evidence or argument that is new, surprising, and relevant." (Ibid.) However, a party's failure to specify a particular issue in his or her pleadings does not necessarily preclude a court from granting relief on that issue if the matter is implicitly placed at issue before the court and the losing party had a reasonable opportunity to respond to the issue. (Id. at pp. 574-576.) Here, Ries had ample opportunity to be heard; indeed, the entire purpose of Masters's proceeding was to invalidate a trust that expressly identified the U.S. Bank account as an asset, and have Wolf's estate proceed through probate under the laws of intestate succession. Ries thus had a full and fair opportunity to submit evidence regarding her claim of ownership. Importantly, the trial court did not finally adjudicate the disposition of the U.S. Bank account but merely maintained the status quo until that account's disposition by the Los Angeles Superior Court. Its characterization of the injunction as permanent is of no moment, as nomenclature does not determine the character of its order. (Yellen v. Fidelity & Casualty Co. (1931) 115 Cal.App. 434, 436.) We conclude Ries has not demonstrated the court abused its discretion in maintaining the restraining order pending final disposition of Wolf's estate in the Los Angeles County Superior Court.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.