Filed 2/11/21 Green v. Cohen CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, William P. Barry, Daniel Juarez, Judges. Affirmed in part, reversed in part, and remanded.

Theodora Oringher, Jon-Jamison Hill, for Plaintiff and Respondent Matthew Green.

Robert Green, in pro. per., for Plaintiff and Respondent.

Garrett & Tully, Ryan C. Squire, Zi C. Lin, and Linda R. Echegaray, for Court-Appointed Trustee Michael Augustine.

Caldwell Law Firm and Larry J. Caldwell for Defendants and Appellants.

Dorothy Green (Dorothy) and Irwin Green (Irwin), established the Irwin L. Green and Dorothy L. Green Revocable 1998 Trust (the Trust). In 2016, as Irwin was dying of cancer, Dorothy attempted to revoke the Trust and executed deeds purporting to transfer two real property parcels�"the Trust’s largest assets�"to herself and Irwin as community property. After Irwin died, two of the couple’s adult children, Matthew Green (Matthew) and Robert Green (Robert), filed a petition challenging these actions and alleging Dorothy was subject to the undue influence of their sister, Paula Green (Paula). Dorothy, in turn, filed a petition alleging elder abuse by Matthew and Robert. We are asked to decide whether substantial evidence supports a number of the trial court’s findings: that the Trust was not revoked, that the trust transfer deeds are invalid, that Dorothy should be removed as trustee, and that Paula is liable for financial elder abuse while Matthew and Robert are not. We also consider whether the trial court erred in ordering Dorothy and Paula to return certain funds to the Trust.

I. BACKGROUND

A. The Green Family

Dorothy and Irwin met in the 1960s, married, and had three children. Irwin was diagnosed with cancer in December 2015. He spent most of his remaining weeks in hospitals, and he died on March 15, 2016. He was 86 years old. When this case proceeded to trial in 2017, Dorothy was 86 years old, Matthew was 55, Paula was 52, and Robert was 48.

Irwin made his living primarily in real estate�"renting and developing property. Both Matthew and Paula worked with him. Matthew is a licensed general contractor, real estate broker, and attorney. In addition to legal work and developing real estate on his own, Matthew assisted Irwin with 15 or 16 development projects. He invested money in these projects, served as the general contractor, reviewed contracts, and occasionally served as the broker. Matthew and Irwin also owned a tequila importing business for about a decade, and Matthew represented his parents in over 25 legal matters. Matthew is the father of Dorothy and Irwin’s only grandchild.

Paula is a licensed realtor, but she worked on only two or three transactions not involving family members in the five years prior to Irwin’s death. She had no significant employer other than Irwin since she graduated college.[1] She worked on 20 to 25 real estate development projects with Irwin, including by helping with zoning and other regulatory issues, with design, and with construction.

Robert formerly hosted fitness television shows and, since the early 1990s, has run a small chain of “lifestyle stores” under the Body Factory brand. Robert testified Irwin gave him advice but did not invest in the business. Nonetheless, Robert “gave him points in the business,” meaning that Robert paid Irwin “dividends” when the business was profitable. As we shall discuss in greater detail, there was conflicting testimony at trial regarding the character of funds Robert received from his parents and charged to shared accounts.

B. Dorothy and Irwin’s Estate Plan and Assets

Attorney Randy Spiro (Spiro), who testified at trial, prepared the Trust for Dorothy and Irwin.

The Trust provides that, upon the death of either Dorothy or Irwin, the Trust estate is to be divided into two separate trusts, which are designated the survivor’s trust and the decedent’s trust. The surviving spouse is entitled to receive the net income from the survivor’s trust and, if insufficient, any portion of the principal necessary for his or her “proper health, education, support and maintenance.” When the surviving spouse dies or resigns, or two doctors certify that he or she lacks capacity, Matthew, Paula, and Robert are to act as co-trustees. Upon the death of the surviving spouse, the entire Trust estate is to be divided into equal shares for each child then living or any deceased child with issue then living.

Section 11 of the Trust, which figures prominently in this appeal, states the circumstances under which Dorothy or Irwin may unilaterally revoke the Trust: “During the joint lifetimes of the Trustors, this Trust may be revoked in whole or in part with respect to community property by an instrument in writing signed by either Trustor and delivered to the Trustee and the other Trustor, and with respect to separate property by an instrument in writing signed by the Trustor who contributed the property to the Trust, delivered to the Trustee.”

At the time of Irwin’s death in March 2016, the Trust’s largest assets were a $440,000 life insurance policy insuring Irwin’s life, a home on Mandeville Canyon Road in Los Angeles, California (the Mandeville property), and a home on South Glenroy Avenue, also in Los Angeles (the Glenroy property). Dorothy was still living at the Mandeville property during trial of this case.

C. Dorothy’s Purported Revocation of the 1998 Trust and Subsequent Actions

Paula called Spiro sometime in 2015 or 2016. Spiro asked her to put Dorothy or Irwin on the phone because they were his clients. Dorothy told Spiro that Irwin was not well and she wanted to modify her estate plan in favor of Paula. Anticipating that it might be necessary to seek a conservatorship of Irwin, Spiro referred Dorothy to another attorney, Gary Ruttenberg (Ruttenberg).

Ruttenberg had a telephone conversation with Dorothy around March 9, 2016 (less than one week before Irwin died). Paula drove Dorothy to Ruttenberg’s office the next day. Ruttenberg met with Dorothy alone for about 45 minutes. Dorothy had an incomplete copy of the Trust and told Ruttenberg she believed Matthew and/or Robert broke into her home and stole the original document. Dorothy said she was “scared to death” of Matthew and Robert and claimed they had taken her dog and threatened to institute a conservatorship over her. Ruttenberg advised Dorothy to revoke the Trust, reasoning that this would give her control over the disposition of at least half the assets.

On March 10, 2016, Dorothy signed a document, prepared by Ruttenberg, purporting to revoke the Trust. The document states, in pertinent part, that, as one of the settlors of the Trust, Dorothy was “desirous of revoking and terminating the Trust” and, as one of the trustees of the Trust, acknowledged delivery of the document to herself. The purported revocation further states a complete, signed copy of the Trust could not be located.

The next day, Dorothy and Irwin signed trust transfer deeds that Ruttenberg prepared for the Mandeville and Glenroy properties. Ruttenberg testified that he sent his assistant to the hospital with the transfer deeds for signature and then had them recorded. The trust transfer deeds purport to transfer the Mandeville and Glenroy properties from “Irwin L. Green and Dorothy L. Green, Trustees of the Irwin L. Green and Dorothy L. Green Revocable 1988 [sic] Trust” to Irwin and Dorothy, as husband and wife, as community property with right of survivorship.

In May 2016, after Irwin’s death, Dorothy submitted a claim to his life insurer, which Paula signed as witness, that enclosed the document purporting to revoke the Trust. The insurer, Transamerica, replied that because the Trust, as primary beneficiary, no longer existed, the proceeds would be paid to Irwin’s estate. With Ruttenberg’s assistance, Dorothy then sent Transamerica a declaration stating she was entitled to the proceeds. In July 2016, Transamerica sent Dorothy a check for $445,262.77.

Dorothy refinanced the Mandeville property in August 2016. The net proceeds of the loan, $502,025.25, were deposited into a checking account opened in Paula’s name. (Paula would later testify this checking account was also used by Dorothy.)

Dorothy sold the Glenroy property in January 2017 for $2.641 million. She deposited the net proceeds from the sale, $1,778,864.67, into a personal banking account.

D. Litigation

This case involves two petitions: one filed by Matthew and Robert against Dorothy and Paula and another filed by Dorothy against Matthew and Robert.[2] Matthew and Robert sought to remove Dorothy as trustee of the Trust, alleging Dorothy breached her fiduciary duty as trustee and Paula aided and abetted Dorothy’s breach. Matthew and Robert’s suit additionally alleged wrongful taking of trust property and financial elder abuse against Paula, and sought a determination that Paula be deemed to have predeceased Irwin. Dorothy’s action sought to confirm the validity of her revocation of the Trust and alleged financial elder abuse against Matthew and Robert.

In a joint trial statement submitted prior to a November 2017 bench trial, the parties listed 22 contested issues. At a general level, these included whether Dorothy’s purported revocation of the Trust was valid and effective, whether the trust transfer deeds were valid and effective, whether the life insurance proceeds should have been paid to the Trust or Irwin’s estate, whether Dorothy should be removed as trustee of the Trust, whether Paula wrongfully obtained funds from the Trust, and the children’s liability for financial elder abuse.

The principal factual disputes at trial concerned changes in Dorothy’s attitude toward Matthew and Robert during Irwin’s illness, the extent and progression of her cognitive impairment, and the nature of the children’s financial dealings with Dorothy and Irwin. Because Dorothy’s isolation from Matthew and Robert in 2016 and her mental condition around this time are relevant to several issues raised in this appeal, we discuss them at greater length.

1. Dorothy’s relationships with Matthew and Robert

Robert testified he was Dorothy’s favorite child “by far” and, before Irwin fell ill, she called him multiple times a day and sometimes watched a live video feed of his store. Dorothy agreed that she and Robert were close, but she maintained she did not call him more than her other children. Robert testified Matthew frequently took his parents out to dinner and spent holidays with them, and Matthew’s son slept over at Dorothy and Irwin’s house “all the time.”

Robert testified Paula isolated Dorothy from him beginning in February 2016. She cut off Dorothy’s home phone line and, when Robert went to Dorothy’s home and Paula’s apartment, he could not get inside. Robert testified that, days before Irwin died, Paula got Dorothy “riled up” by telling her Robert had stolen Dorothy’s dog[3] and Matthew had several guns and planned to shoot Dorothy and Paula. In a video played at trial, Paula can be heard telling Dorothy “Matthew is going to show up and have a gun and shoot us.”

Paula recalled Dorothy expressing worry to Irwin in the hospital that Matthew was “going to get his gun and shoot us.” Someone overheard the conversation, and all of Irwin’s visitors had to check in with hospital security from that point forward. Paula denied, however, lying to Dorothy about Robert and Matthew. She testified that she did not tell Dorothy that Robert stole her dog. She did admit telling Dorothy that Matthew and Robert were trying to “steal” the Mandeville property, but testified she was only repeating what they said.

Corazon Pineda (Pineda), a caregiver Paula hired to care for Irwin in February and March 2016, lived at the Mandeville property during this period. Dorothy and Paula were also there. Pineda testified that Dorothy was “longing” to see Matthew and Robert during the first weeks of her stay at the Mandeville property, but Dorothy “hate[d]” them by the end. Pineda heard Paula tell Dorothy to call the police if Matthew or Robert came to the house. She believed Paula started fights with Matthew and Robert when they visited Irwin and Dorothy.

In late March 2016, Robert received an email from an address he had not seen Dorothy use before demanding that he pay the balances of shared credit cards. Robert suspected Paula wrote the email because Dorothy did not know how to set up an email address or send an email, the writing did not sound like her, and its content was false. Dorothy testified she did not recall sending the email or using the email address. In April 2016, Matthew and Robert received a handwritten letter in which Dorothy accused them, among other things, of “posturing to take [her two] homes and what little money [she had] left” and “trying to figure out how to hurt [her] and take everything.” She demanded Matthew and Robert pay her $409,000 and $110,000, respectively.[4] She followed up in May 2016 with a handwritten letter to Matthew promising he would have no need “for any concern about receiving money down the road” if he paid her $409,000 and refrained from seeking a conservatorship, but otherwise he would “receive nothing.”

2. Dorothy’s mental condition

At trial, Dorothy was not aware of having filed a petition in this case and did not understand that she was accusing Matthew and Robert of financial elder abuse. She believed the lawsuit had to do with Matthew and Robert trying to “kill” or “destroy” her or Irwin. Specifically, she believed Matthew and Robert were “insisting that [Irwin] was a liar” who “said improper things about them.”

Dorothy testified Irwin took care of “the office” and she took care of the home, so she had no idea what the Trust provided. She did not recall speaking with Spiro while Irwin was ill. She testified Ruttenberg was Irwin’s attorney and she did not remember going to see Ruttenberg without Irwin. She recognized her signature on the document purporting to revoke the Trust, but she had no memory of the document or discussing revocation with anyone. Similarly, Dorothy recognized her signature on the trust transfer deeds, but she had no memory of signing the documents and emphasized that Irwin “took care of everything legal.” Dorothy did not “waste [her] time” worrying about estate planning when Irwin was in the hospital because she was “too concerned about his health.” She did not know the Trust was ever the primary beneficiary of the life insurance policy and did not recall signing the declaration stating she was entitled to the proceeds.

Spiro did not have any questions about Dorothy’s competence when he spoke to her in 2016. Ruttenberg testified that he believed Dorothy had testamentary and contractual capacity in March 2016.

Dr. James Edward Spar, a professor of psychiatry and biobehavioral sciences, was retained by Dorothy to examine her in March 2017. Dr. Spar administered an examination on which Dorothy achieved a score consistent with mild cognitive impairment. Dr. Spar believed, however, that Dorothy was “perfectly competent” to execute a will or trust if she were not forced to rely on memory alone. Dr. Spar explained Dorothy had likely “just deteriorated” since achieving a perfect score on a mental state examination administered by another doctor in July 2016. Dr. Spar emphasized, however, that he was not offering any opinion regarding Dorothy’s susceptibility to undue influence.

Dr. Robert Kahn-Rose, a psychiatrist, testified about Dorothy’s mental health based on hospital records created by physicians treating Irwin and other documentary evidence. Dr. Kahn-Rose opined Dorothy suffered from moderate cognitive impairment in March 2016 and her susceptibility to undue influence was “very high.” He cited, among other things, a speech pathologist’s note from January 2016 indicating that Dorothy repeated questions and a doctor’s note from February 2016 indicating that Irwin would have liked Dorothy to be his primary decision maker but for his concern that she suffered from dementia. On March 12, 2016, another of Irwin’s doctors noted Dorothy appeared to “have a degree of cognitive dysfunction, dementia-related or otherwise” and that there was “some manipulative behavior by the daughter Paula to control access to and information exchange with [Dorothy].” Dr. Kahn-Rose believed Dorothy’s perfect performance on the July 2016 mental state examination was a “clear outlier.”[5]

E. The Trial Court’s Ruling

When the trial court announced its ruling as to what it described as the “testamentary issues” (i.e., the validity of Dorothy’s purported revocation of the Trust, the two transfer deeds, and Dorothy’s acquisition of the life insurance proceeds, and Dorothy’s fitness to continue serving as trustee), it invited further briefing as to alleged financial misconduct by Matthew, Robert, and Paula. The trial court later issued a statement of decision addressing all issues.

The trial court found Dorothy’s purported revocation of the Trust was invalid and ineffective because it was not delivered to Irwin as the Trust required. There was no evidence the revocation was delivered to Irwin�"a fact that Dorothy and Paula’s trial attorney conceded�"and the trial court rejected the argument that Irwin’s condition rendered the delivery requirement moot. The trial court further held that revocation was impossible in March 2016 because the delivery requirement presumed the receiving spouse would have the capacity to respond. Finally, even if the delivery condition had been satisfied, the court found the revocation was the direct result of Paula’s undue influence over Dorothy.

As to the trust transfer deeds, the court found they were invalid because (1) Irwin lacked capacity to execute them, (2) Dorothy did not rebut the presumption of undue influence that arises when one spouse gains an advantage from a transaction, (3) the trust transfer deeds misidentified the Trust (as the “1988 Trust” rather than the “1998 Trust”), and (4) they were the product of Paula’s undue influence over Dorothy.

The trial court additionally found Dorothy wrongfully obtained the proceeds of Irwin’s life insurance policy because the Trust remained in effect and, even if not, Irwin’s estate�"not Dorothy�"would have been entitled to the proceeds.

The trial court ordered Dorothy removed as trustee of the Trust and replaced her with Michael R. Augustine (Augustine), an independent fiduciary.[6] The court determined Dorothy’s removal was necessary for three independent reasons provided in Probate Code section 15642, subdivision (b):[7] Dorothy committed a breach of trust, she lacked capacity to serve as trustee, and she was unable to resist Paula’s undue influence.

The trial court ordered Dorothy and Paula to return Trust assets with interest. These included the net proceeds of the August 2016 loan secured by the Mandeville property, the net proceeds of the January 2017 sale of the Glenroy property, and the life insurance proceeds.

The trial court determined Matthew and Robert did not engage in financial elder abuse, but Paula engaged in a “relentless, continuous and repetitive campaign of false statements and misrepresentation to Dorothy about Matthew and Robert so that she could unduly influence Dorothy from at least December 2015 and continuing until today.” The trial court ordered Paula to return funds obtained by undue influence and to pay double damages.

Based on its findings that Paula was liable for elder financial abuse and both Paula and Dorothy were liable for taking property by undue influence, the trial court ordered Dorothy and Paula to pay Matthew and Robert’s attorney fees and costs.

II. DISCUSSION

Dorothy and Paula challenge nearly all aspects of the trial court’s ruling. Other than a relatively minor calculation error the trial court made, which we shall correct, the challenges are unavailing�"as we first summarize and then discuss.

The primary issue, which bears on several others, is whether Dorothy successfully revoked the Trust in March 2016. Substantial evidence supports both of the trial court’s alternative conclusions: that Dorothy did not comply with the Trust’s requirement that any revocation be delivered to the other trustee and that, regardless, Dorothy’s attempt to revoke the Trust was the direct product of Paula’s undue influence.

The host of other issues raised were also correctly resolved by the trial court. The Trust’s continued existence beyond March 2016 forecloses Dorothy and Paula’s challenge to the trial court’s determination that the trust transfer deeds were invalid (the challenge assumes the Mandeville and Glenroy properties reverted to community property upon Dorothy’s revocation of the Trust). The trial court’s removal of Dorothy as trustee was appropriate because there is substantial evidence of her inability to resist Paula’s undue influence. The trial court’s order that Dorothy and Paula return certain assets to the Trust was proper, and their argument to the contrary rests on a flawed analogy between remedies for common law fraud and the trial court’s authority to restore property belonging to a trust (and, regardless, Dorothy and Paula’s continued possession of Trust property is indeed an out-of-pocket loss to the Trust). Substantial evidence supports the trial court’s conclusion that Matthew and Robert did not obtain funds from Dorothy and Irwin wrongfully, but rather as part of longstanding, voluntary arrangements. Substantial evidence also supports the trial court’s conclusion that Paula did obtain funds through undue influence. And the court’s demand for a relatively detailed accounting from Paula does not reflect gender bias, but an evidence-based assessment of her credibility.

Though we affirm the bulk of the trial court rulings, we shall reverse and remand in one minor respect. The trial court made a calculation error in ordering Paula to repay a portion of reimbursed funds and in assessing damages based on this incorrect amount.

A. Dorothy Did Not Revoke the Trust

1. No Delivery of the Revocation Document

The Trust provides for unilateral revocation as to community property during the joint lifetimes of the trustors “by an instrument in writing signed by either Trustor and delivered to the Trustee and the other Trustor.” At trial, Dorothy and Paula’s attorney conceded there was no evidence that the document by which Dorothy purported to revoke the Trust was ever delivered to Irwin. Counsel argued, however, that delivery to Irwin in the hospital would have been “a futile act” because “it would sit there on his chest . . . .” The trial court found there was no evidence of delivery and further found that, rather than excusing Dorothy’s failure to satisfy the delivery requirement, Irwin’s condition made revocation impossible.

Dorothy and Paula now contend their trial attorney erred in conceding there was no evidence of delivery. They point to Dorothy’s verified petition, which includes an allegation that, “[c]onsistent with [the Trust], on March 10, 2016, Dorothy executed and delivered to Irwin . . . a revocation of the Trust . . . .”

Even if Dorothy’s verified petition had been offered in evidence�"it was not[8]�"the trial court’s conclusion that the revocation was not delivered to Irwin is still supported by substantial evidence. (See, e.g., Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [a court applying the substantial evidence standard views the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor] (Jessup Farms).) Dorothy did not recognize the revocation document at trial, had no recollection of speaking with Spiro or Ruttenberg without Irwin, emphasized Irwin handled their estate planning, and said she was too concerned about Irwin’s health to consider estate planning while he was in the hospital.

Dorothy and Paula contend Dorothy’s inability to recall executing or delivering the revocation does not prove it was not delivered, but rather that she was not competent to testify on the subject. This argument ignores Dorothy’s affirmative testimony that she did not concern herself with estate planning. In other words, her testimony was not simply that she did not recall revoking the Trust; she recalled not acting with respect to the Trust.[9]

2. Undue influence

In addition to concluding substantial evidence supports the trial court’s determination that Dorothy did not deliver the revocation document to Irwin, we conclude the trial court did not err in determining Dorothy’s attempt to revoke the Trust was the product of Paula’s undue influence.

“Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96.) “‘Direct evidence as to undue influence is rarely obtainable and hence a court or jury must determine the issue of undue influence by inferences drawn from all the facts and circumstances.’ [Citations.]” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355.)

Here, as Dorothy and Paula recognize, revocation of the Trust would have resulted in the Mandeville and Glenroy properties reverting to community property. There is substantial evidence that Paula unduly influenced Dorothy to bring about this outcome and positioned herself to benefit from Dorothy’s increased control over her interest in the properties.

Paula isolated Dorothy from Matthew and Robert, with whom Dorothy enjoyed good relationships prior to Irwin’s hospitalization. Pineda, a neutral observer, saw Dorothy’s attitude toward her sons shift drastically over a short period, from “longing” to “hate.” Paula told Dorothy that Matthew was going to shoot her, and hospital staff made special security arrangements when Dorothy was overheard expressing concern about this. Robert was unable to visit with Dorothy after she moved in with Paula, and Dorothy sent out-of-character correspondence during this period that she did not recall at trial.

Dr. Kahn-Rose testified that Dorothy was highly vulnerable to undue influence in March 2016, and Dorothy’s expert, Dr. Spar, made clear that he was offering no opinion on the matter. Although Spiro and Ruttenberg believed Dorothy possessed testamentary capacity in March 2016, “‘[s]oundness of mind and body does not imply immunity from undue influence.’” (Estate of Baker (1982) 131 Cal.App.3d 471, 486, quoting Estate of Olson (1912) 19 Cal.App. 379, 386.) Ruttenberg acknowledged Dorothy was “scared to death” of Matthew and Robert.

Dorothy and Paula’s only challenge to the trial court’s ruling that Dorothy’s attempt to revoke the Trust was a product of Paula’s undue influence is the unsupported assertion that any undue influence was “super[s]eded as a legal cause by Dorothy’s consultation with Mr. Ruttenberg . . . .” Dorothy and Paula acknowledge there is no authority for this position, but they argue such a rule is necessary because “[o]therwise, a finding that a third party was exercising undue influence over [an] elder would effectively take away all of the elder’s legal rights regarding testamentary decisions, even though the person is legally competent and not subject to a conservatorship.”

We find the argument unpersuasive. The suggestion that an attorney’s involvement should insulate a testamentary act from a challenge based on undue influence would permit individuals to launder their undue influence through a complicit or unperceptive attorney. A drafting attorney may be able to provide evidence as to undue influence or the lack thereof, but such testimony�"let alone the basic fact of the attorney’s involvement�"is not dispositive. (See Estate of Goetz (1967) 253 Cal.App.2d 107, 114 [in the context of a challenge to a will based on the testator’s competency, a drafting attorney’s testimony is “not conclusive,” but “entitled to much weight”].)

B. The Trial Court’s Ruling that the Trust Transfer Deeds Are Invalid Was Not an Idle Act

The trust transfer deeds purport to transfer the Mandeville and Glenroy properties from Irwin and Dorothy as trustees of the “1988 [sic] Trust” to Irwin and Dorothy, as husband and wife, as community property with right of survivorship. Dorothy and Paula do not challenge the trial court’s substantive reasons for setting aside the trust transfer deeds, but they contend it was an idle act because the Mandeville and Glenroy properties reverted to community property upon Dorothy’s revocation of the Trust. In other words, whether or not the trust transfer deeds were valid, Dorothy and Paula believe the homes are community property. That is wrong. As we have already held, substantial evidence supports the trial court’s finding that there was no effective revocation of the Trust.

C. Substantial Evidence Supports Dorothy’s Removal as Trustee

The trial court removed Dorothy as trustee of the Trust relying on three of the non-exhaustive grounds for removal listed in section 15642: Dorothy committed a breach of trust (§ 15642, subd. (b)(1)); she was unfit (i.e., lacks capacity) to administer the Trust (§ 15642, subd. (b)(2)); and she was substantially unable to resist undue influence (§ 15642, subd. (b)(8)).

The finding that Dorothy was unable to resist Paula’s undue influence is supported by substantial evidence for the reasons we have already articulated. Dorothy does not challenge this finding or the finding that she committed a breach of trust by transferring the Mandeville and Glenroy properties out of the Trust and claiming the life insurance proceeds for herself. Instead, she contends we must reverse because the third alternative ground for the trial court’s ruling�"Dorothy’s unfitness�"is inconsistent with the terms of the Trust. Even if Dorothy’s construction of the Trust had merit, we would affirm based on the other two grounds for the trial court’s ruling.

D. Matthew and Robert Were Not Required to Prove the

Trust Suffered an Out-of-Pocket Loss, and There Was Such a Loss in Any Event

The trial court ordered Dorothy and Paula to return to the Trust the net proceeds of the August 2016 loan secured by the Mandeville property, the net proceeds of the January 2017 sale of the Glenroy property, and the life insurance proceeds, plus prejudgment interest. The trial court’s statement of decision does not specify the statutory authority for this ruling, but Matthew and Robert sought this relief under sections 850 and 16420.

“Section 850 et seq. provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person.” (Estate of Young (2008) 160 Cal.App.4th 62, 75.) Section 850, subdivision (a)(3)(B) provides that a trustee or any interested person may petition the court for an order under sections 850 through 859 when the trustee “has a claim to real or personal property, title to or possession of which is held by another.” Section 856 provides, subject to exceptions not applicable here, that “if the court is satisfied that a conveyance, transfer, or other order should be made, the court shall make an order authorizing and directing the personal representative or other fiduciary, or the person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief.” These provisions do “not contemplate an award of damages to anyone. The statutory scheme’s purpose is to effect a conveyance or transfer of property belonging to a decedent or a trust or another person under specified circumstances, to grant any appropriate relief to carry out the decedent’s intent, and to prevent looting of decedent’s estates.” (Estate of Kraus (2010) 184 Cal.App.4th 103, 117.)

Section 16420, subdivision (a)(3) provides that, if a trustee commits a breach of trust, a trust beneficiary may commence a proceeding to “compel the trustee to redress a breach of trust by payment of money or otherwise.” Section 16420, subdivision (b) states “[t]he provision of remedies for breach of trust in subdivision (a) does not prevent resort to any other appropriate remedy provided by statute or the common law.” The Law Review Commission’s comment to section 16420, subdivision (a)(3) explains that “[t]he reference to payment of money in paragraph (3) is comprehensive and includes liability that might be characterized as damages, restitution, or surcharge.” (Cal. Law Revision Com. com., 54A Pt.1, West’s Ann. Prob. Code (2011 ed.) foll. § 16420, p. 256; Estate of Giraldin (2012) 55 Cal.4th 1058, 1068 [remedies afforded by section 16420 “are indeed broad”].)

Without discussing these two statutes, Dorothy and Paula cite Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226 (Alliance) for the proposition that a plaintiff alleging common law fraud may only recover damages measured by his or her out-of-pocket loss and assert the same rule should apply in probate actions. (Id. at 1240.) They argue that because Dorothy was authorized as trustee to deposit the disputed sums in personal accounts, the Trust suffered no loss and damages were unwarranted.

Nothing in section 856 or 16420 suggests the available remedies are subject to the out-of-pocket loss rule. Section 856’s reference to a “conveyance, transfer, or other order” is not so limited, nor is section 16420, subdivision (a)(3)’s reference to a “payment of money or otherwise.” It also is not clear, in any case, what consequences Dorothy and Paula believe such a limitation would have in this case. They contend that application of the out-of-pocket loss rule would force Matthew and Robert to prove the disputed assets had “diminished in dollar value” due to Dorothy and Paula’s actions. But the trial court’s order is premised on the finding that, whatever the value of the disputed assets, they are not currently in the Trust’s possession because Dorothy did not obtain them in her capacity as trustee. She was ordered to return to the Trust funds that she obtained after purporting to revoke the Trust, purporting to transfer property out of the Trust, and (in the case of the insurance proceeds) declaring that no other person had an interest in the funds. In other words, even if the remedies available against Dorothy and Paula are limited by the out-of-pocket loss rule, the judgment against them addresses an out-of-pocket loss to the Trust.

E. Substantial Evidence Supports the Trial Court’s Rejection of Dorothy’s Elder Abuse Claims Against Matthew and Robert, and the Trial Court Was Not Biased against Paula

A person is liable for financial elder abuse if he or she obtains the real or personal property of an elder or dependent adult “for a wrongful use or with intent to defraud” or “by undue influence, as defined in [Welfare and Institutions Code] Section 15610.70” (Welf. & Inst. Code, § 15610.30, subd. (a)).[10] The trial court found Dorothy “failed to carry her burden of proof that either Matthew or Robert engaged in any acts or omissions that could constitute financial elder abuse” while Paula, on the other hand, engaged in a “relentless, continuous and repetitive campaign of false statements and misrepresentations to Dorothy.” Substantial evidence supports the trial court’s findings as to Matthew and Robert and the trial court’s close scrutiny of Paula’s financial transactions was warranted by the ample evidence of her undue influence over Dorothy.

1. Matthew

Robert testified that Matthew and Irwin were “always in business” together, including construction projects and a tequila company. Matthew explained Irwin retired for several years during the 1970s, but returned to property development when Matthew obtained his contractor’s license. Matthew testified he developed about two dozen properties independently of Irwin, but also worked on every one of Irwin’s 15 or 16 post-retirement development projects. Matthew served as general contractor on most of these projects, reviewed purchase and sale agreements, and invested “hundreds and hundreds of thousands of dollars” in the projects.

Matthew testified he and his parents “always” had joint bank accounts because they did “so much business together.” Both Matthew and his parents would deposit funds, and “everything was co[m]mingled.” In 2012, Dorothy and Irwin amended the Trust to allow anyone to exercise a power of attorney on behalf of the Trust. Matthew testified he was given power of attorney over the Trust and Dorothy and Irwin imposed no restrictions on his authority to act on its behalf.

According to Matthew, in 2015 he and Irwin needed liquidity for development projects. They obtained loans of $200,000 and $600,000 secured by the Glenroy and Mandeville properties. Matthew testified Dorothy knew about the loans and signed the notes and deeds of trust. Matthew testified it was common for large checks to go back and forth between him and Irwin: “[T]here was always give and take. My father didn’t keep a running track.”

Dorothy contends Matthew obtained $856,180 from her and Irwin between 2012 and Irwin’s death in March 2016 and provided no evidence of a “legitimate reason” for these payments. There was substantial evidence, however, that Matthew and Irwin had a longstanding business relationship in which funds were commingled. The only evidence that Matthew’s acquisition of the funds at issue was wrongful was Dorothy’s correspondence, sent after Irwin died, demanding Matthew return $409,000. But Dorothy had no recollection at trial of the circumstances under which she wrote these letters, and her inability to recall even using an email address from which she purportedly wrote to Robert suggested a third party was involved in authoring the correspondence. Construing the evidence in the light most favorable to the judgment and drawing all reasonable inferences in support of the trial court’s findings (Jessup Farms, supra, 33 Cal.3d at 660), Matthew’s failure to provide a detailed accounting of the funds he received does not warrant reversal.

2. Robert

Robert opened his current business, Body Factory, in the early 1990s. Robert testified that his parents did not invest in the business, but he nonetheless gave Irwin “points” when the business was profitable. When asked about tens of thousands of dollars he received in checks from Dorothy and Irwin made out to Body Factory in 2014 and 2015, Robert testified that Irwin would sometimes give him checks to cover business expenses for short periods, but Robert reimbursed him.

Robert purchased products for Body Factory using credit cards and carried large balances on those credit accounts. He testified Dorothy was “mortified” by the interest he paid each month, discussed the matter with Irwin, and they decided to make Robert an authorized user of certain of their credit cards. Robert received his own credit cards from Dorothy and Irwin’s accounts with his name on them. Robert testified that he “generally” made “a full payment every month so there [was] no interest charge.” Robert made these payments through Irwin’s online banking profile. Robert stopped making payments in early 2016, however, when he no longer had access to the online banking profile. Robert testified he had no way to contact Dorothy at this time. He did not send Dorothy a check for the balances because he does not have a checkbook.

Dorothy contends Robert “admitted . . . he never re-paid any of the charges he put on his parents’ credit cards” and failed to provide a “reasonable explanation” as to why he received money from and shared credit cards with Dorothy and Irwin. But the suggestion that Robert “admitted” he never paid charges on shared credit card accounts is refuted by a portion of Robert’s testimony that Dorothy cites (in which he testified he was paying every month on a credit account and last made a payment in January or February 2016). Similarly, the contention that Robert failed to explain his financial dealings with his parents ignores his testimony that Dorothy and Irwin freely decided to support his business with short-term loans and access to their credit. Robert additionally explained that he would have paid credit card bills in 2016 but for his being denied access to the online banking profile of the associated credit cards and an inability to reach Dorothy. Theorizing regarding alternative means by which, with some effort, Robert might have paid Dorothy is not sufficient to reverse the trial court’s conclusion that Robert’s use of shared credit cards was not wrongful, fraudulent, or the product of undue influence.

3. Paula

Paula asserts the trial court “applied a prejudicially higher standard” to the elder abuse claims against her than to the claims against her brothers. She rather casually posits that may have been “motivated by misogynist bias.” Although gender-related bias is grounds for reversal (see generally People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4), there is none apparent here.

Paula, for instance, contrasts the trial court’s acceptance of her brothers’ non-specific testimony concerning their finances with its rejection of thousands of dollars in expenses that Paula listed in a 17-page spreadsheet. (Paula submitted the spreadsheet to demonstrate she was entitled to certain funds she received from Dorothy and Irwin.) Paula contends the trial court’s review of this spreadsheet was flawed because it disallowed “a number of expenses paid by Paula that were obviously her parents’ expenses,” such as Mandeville property taxes and a heart scan for Irwin. But Paula’s own description of the spreadsheet was “a summary of expenses that [she] had for Glenroy,” and the “reason to disallow” certain line-items suggested in a column prepared by Matthew and Robert was “Not Related to Glenroy.”

Paula also contends the trial court’s rejection of small expenses (e.g., a $3.49 purchase from a hardware store) for lack of supporting documentation reflects a level of scrutiny not applied to Matthew and Robert’s finances. But nothing in the appellate record suggests this discrepancy was due to gender bias as opposed to the trial court’s fair assessment of Paula’s credibility. While announcing its ruling as to testamentary issues, the trial court remarked that “the evidence substantially undercut Paula’s credibility to the point that I have difficulty finding that she’s credible in almost anything she said.” Among other things, the trial court emphasized it believed Paula “exaggerated a lot of things” to Dorothy, such as a threat that Matthew planned to kill them; the court found Paula’s testimony that Irwin wanted certain funds hidden from Matthew “incredible” in light of Irwin and Matthew’s close business relationship; and the court believed Paula was untruthful in claiming that the sale of the Glenroy property was held up by a lis pendens Matthew and Robert filed rather than the lack of required permits.[11] There were ample non-gender-based reasons for the trial court’s close review of Paula’s claimed expenses.

F. The Double Damages Award Against Paula Is Warranted Under Section 859, but the Trial Court Must Correct a Calculation Error

The trial court ordered Paula to return $292,086.95 obtained by undue influence to the Trust and to pay double damages pursuant to section 859.[12] Paula contends section 859 does not apply in this case, but that is incorrect. Her argument that the trial court miscalculated the amount she is required to return to the Trust, on the other hand, is correct and requires a partial reversal and a remand to the trial court to correct the error.

1. Double damages

Section 859 provides, in pertinent part, that “f a court finds that a person has in bad faith wrongfully taken . . . property belonging to . . . a trust . . . or has taken . . . the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part . . . .” Paula contends section 859 does not apply to at least some of the funds at issue because she obtained them after the Trust was revoked�"i.e., they were not “property belonging to . . . a trust.” (§ 859.) As we have already held, however, the Trust was not revoked.

[i]2. Calculation

In response to the trial court’s request for supplemental briefing regarding financial issues, Paula argued a specific payment of $201,326.83 she received in 2017 was “partial reimbursement” for $271,539.38 in expenses she paid on Dorothy and Irwin’s behalf. Paula submitted a spreadsheet summarizing these expenses.

Matthew and Robert submitted a version of Paula’s table of expenses that listed reasons to disallow $80,430.40 of the $271,539.38 she claimed to have paid for Dorothy and Irwin. The trial court found Paula obtained $80,430.40 of the $201,326.83 “under false pretenses and as a result of undue influence” and ordered her to return that amount to the Trust. (This sum was also included in the double damages calculation.)

Paula contends the trial court committed a “math error” when it ordered her to return $80,430.40 in disallowed expenses without reducing this amount by the difference between what she claimed she was owed and what she actually received. In other words, Paula contends the trial court should have ordered her to return just $10,217.85 of the $201,326.83 she received. This represents $80,430.40 (disallowed expenses) minus $70,212.55 (the difference between the $271,539.38 she claimed she was owed and the $201,326.83 she received).

The trial court’s finding that $80,430.40 of Paula’s claimed expenses should be disallowed does not support its ruling that she return $80,430.40. Matthew and Robert contend there is no indication that the trial court “accepted [Paula’s] full claim of $271,539 in expenses.” This is true, but the trial court only expressly refused to accept a portion of these claimed expenses. (Indeed, Matthew and Robert only challenged $80,430.40 of Paula’s claimed expenses.) The order to return all of the disallowed expenses can only be based on the assumption�"for which there is no evidence�"that Paula was paid all of her claimed expenses in the first place.

Augustine suggests Paula “admitted in closing that she had been reimbursed for all but $22,000 of the $271,539” and she is now bound by this admission. Even if Paula’s trial counsel made a statement to this effect in his closing argument, there is no indication the trial court relied on it. Following closing arguments, the trial court ruled on testamentary issues and said it was not prepared to rule on alleged financial improprieties. It solicited additional briefing in which Paula clarified her position regarding unreimbursed expenses.

We will reverse the judgment as to $80,430.40 (doubled) that Paula was ordered to return to the Trust and remand to the trial court for a recalculation.

G. Attorney Fees

Dorothy and Paula also challenge the attorney fee awards the trial court made predicated on its elder financial abuse and undue influence findings. Because we have affirmed the soundness of those findings, the challenge to the attorney fee awards fails.

DISPOSITION

The judgment is reversed insofar as it requires Paula to return to the Trust $80,430.40 of a $201,326.83 payment she received in 2017, and to pay double damages on this amount. On remand, the trial court shall recalculate the amount to be returned and any damages assessed thereon in a manner consistent with this opinion. The judgment is affirmed in all other respects. Plaintiffs and Trustee Augustine shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

[1] Paula did occasionally work as a personal trainer.

[2] Dorothy died during the pendency of this appeal. The trial court appointed Randall Cohen as the special administrator of her estate, and he continues the litigation in a representative capacity. For simplicity’s sake, we continue to refer to Dorothy as the appellant in our discussion.

[3] Robert testified he took the dog from the Mandeville home in March 2016 because there was no food in the house and she had an eye infection. He took her to a veterinarian for eye surgery.

[4] Dorothy testified no one told her what to write in the April letter. She could not recall “what was going on” when she wrote the letter, but said she “apparently” knew at the time.

[5] Dr. Kahn-Rose also testified about Irwin’s mental health. Based on hospital records, Dr. Kahn-Rose opined that Irwin was “severely cognitively impaired” around the time Dorothy attempted to revoke the Trust and she and Irwin executed the trust transfer deeds. Over the previous week, doctors noted Irwin was confused and unable to answer simple questions and appeared to be experiencing visual hallucinations.

[6] Dorothy and Paula contend Augustine breached his duty of impartiality by filing a brief in this appeal. The issue is not properly before us.

[7] Undesignated statutory references that follow are to the Probate Code.

[8] Dorothy and Paula rely on Evangelho v. Presoto (1998) 67 Cal.App.4th 615, 620, Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1088, and Estate of Fraysher (1956) 47 Cal.2d 131, 134-135 for the proposition that a verified petition is admissible under certain circumstances. But admissible does not mean in evidence, and nothing in the record indicates the trial court treated the petition as if it had been admitted in evidence.

[9] Although we need not consider whether delivery was impossible due to Irwin’s condition, we pause to reject Dorothy and Paula’s contention that the trial court’s findings on this point reflect a “misogynist and paternalistic” bias. The trial court’s emphasis of Irwin’s prominent role in the couple’s estate planning (e.g., “[h]e had control of the testamentary documents and appears to have had the primary role in discussing matters with estate planning counsel”) was not to suggest that Irwin was entitled to veto Dorothy’s decisions. Rather, it underscored the trial court’s view that the delivery requirement was “intended to allow the non-revoking Trustor to become involved in the decision as to whether or not to revoke the Trust.”

[10] Welfare and Institutions Code section 15610.70 defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity” and lists factors to consider in determining whether a result was produced by undue influence. These factors include the vulnerability of the victim, the influencer’s apparent authority, the actions or tactics taken by the influencer, and the equity of the result. (Welf. & Inst. Code, § 15610.70.)

[11] One credibility determination that Paula suggests is contrary to all evidence in the record and a clear product of the trial court’s bias against her is the finding that Irwin “[n]ever intended to give Paula an interest in the Mandeville property . . . .” But Matthew testified that “Paula was running around telling people she owned Mandeville,” he was “somewhat horrified” and “couldn’t believe” this, and Irwin confirmed by email this was not true. There was substantial evidence for the trial court’s finding on this issue.

[12] The double damages award of $296,431.95 appears to reflect a calculation error that Paula does not challenge. The trial court found that $4,345 of $46,000 Paula obtained on March 7, 2016, went toward Dorothy’s expenses: The $4,345 is not included in the trial court’s calculation of the sum it ordered Paula to return to the Trust, but appears to have been included in the double damages total.