Filed 3/18/22 Janni v. Collins CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Law Office of Martin N. Buchanan, Martin N. Buchanan; Southern California Legal Center and James A. Caputo for Plaintiff and Appellant.

Stone Law Group, Kenneth H. Stone and Angela Elpers Barnes for Defendant and Respondent.

Clifton Payne, Sr. (Clifton Sr.) had three children: appellant Cynthia Janni; Deborah Payne; and Clifton Payne, Jr. (Clifton Jr.). Clifton Sr. executed trust amendments that eventually disinherited Cynthia and Clifton Jr., and left the trust’s income to Deborah until the year 2037, at which time the trust residue would be distributed to Clifton Sr.’s longtime friend, Lorelai Howard. After Clifton Sr. died, and Deborah and Clifton Jr. died about one year later, Cynthia (as Deborah’s sole intestate heir) and Howard made competing claims of entitlement to the trust estate. The estate’s trustee, respondent Gloria Collins (Trustee), filed a petition seeking instruction from the probate court on how to resolve the competing claims. The probate court ruled that Clifton Sr.’s “clear . . . inten[t]” was for Howard to receive the entire trust estate immediately upon Deborah’s death, rather than waiting until 2037.

About seven months later, Cynthia filed petitions seeking to invalidate the trust amendments on the ground Clifton Sr. lacked the mental or physical capacity to execute them. The probate court sustained the Trustee’s demurrer to the petitions without leave to amend, finding Cynthia’s challenge was barred by the doctrine of issue preclusion because she could have raised it in response to the Trustee’s petition for instructions, but failed to do so.

On appeal, Cynthia contends the probate court erred by applying issue preclusion because the doctrine applies only when an identical issue was actually and necessarily litigated in a prior proceeding. She maintains these requirements were not satisfied because the Trustee’s earlier petition did not address Clifton Sr.’s capacity. We disagree. Properly framed by the record before us, the Trustee’s petition addressed the issue of Clifton Sr.’s intent, which encompassed the issue of Clifton Sr.’s capacity. Consequently, Cynthia’s challenge to Clifton Sr.’s capacity was within the scope of issues resolved in the earlier proceeding such that issue preclusion barred her from raising it again.

Accordingly, we affirm.

• I. FACTUAL AND PROCEDURAL BACKGROUND
  • A. The Trust Documents and Beneficiaries
    • 1. The Trust

On July 29, 2010, Clifton Sr. executed a revocable trust (the Trust) that provided for the following distribution of Trust assets upon his death:

• 60% to Deborah
• 20% to Cynthia
• 10% to Cynthia’s daughter Ashley
• 10% to Cynthia’s daughter Britteny
• “nothing to” Clifton Jr.

The Trust provided that if Clifton Sr. was not survived by any of the identified beneficiaries, the Trust estate was to be distributed to Ashley, Britteny, and Clifton Sr.’s “friend Lorelei Howard.”[1] The Trust also identified Howard as a successor trustee.

• • • 2. The First Amendment

On September 18, 2015, Clifton Sr. executed a first amendment to the Trust (First Amendment). This amendment provided that upon Clifton Sr.’s death, the Trust income would be distributed monthly as follows:

• 70% to Deborah
• 30% to Clifton Jr.

The amendment stated Clifton Sr. was “intentionally leav[ing] nothing to . . . Cynthia.”

If neither Deborah nor Clifton Jr. survived Clifton Sr., the amendment provided that “the residue of the Trust shall be distributed, free of trust, to [Clifton Sr.]’s friend Lorelei Howard.”

The amendment further provided that if the Trust residue “has not already been distributed as set forth above” by October 24, 2037, “the residue of the Trust shall be distributed, free of trust,” 70 percent to Deborah and 30 percent to Clifton Jr.

The amendment also granted Deborah a life estate in Clifton Sr.’s residence.

• • • 3. The Second Amendment

On October 25, 2016, Clifton Sr. executed a second amendment to the Trust (Second Amendment). This amendment provided that upon Clifton Sr.’s death, the Trust income would be distributed monthly as follows:

• 100% to Deborah

The amendment stated Clifton Sr. was “intentionally leav[ing] nothing to” Cynthia and Clifton Jr.

If Deborah did not survive Clifton Sr., the amendment provided that the Trust residue would be distributed to Howard.

The amendment further provided that if the Trust residue “has not already been distributed as set forth above” by October 24, 2037, the residue would be distributed 100 percent to Deborah, or, if Deborah is not still alive, then to Howard.

• • B. The Death of Clifton Sr.

Clifton Sr. died on October 29, 2016, four days after he executed the Second Amendment.

• • C. Clifton Jr.’s Petition to Invalidate the Second Amendment

About four months after Clifton Sr.’s death, Clifton Jr. filed a verified petition in probate court seeking to invalidate the Second Amendment. He alleged that at the time of Clifton Sr.’s death, the father “suffered from dementia, severe confusion, leukemia, infection from the amputation of his toes, heart problems and debilitating diabetes.” Clifton Jr. acknowledged he and his father had “a troubled history,” but he alleged they had “made amends.” Thus, Clifton Jr. alleged the last-minute Second Amendment “was a product of [Clifton Sr.’s] paranoid thinking and/or mistaken beliefs,” and “does not reflect [Clifton Sr.]’s wishes.”

Clifton Jr. gave notice of his petition to all the beneficiaries identified in the Trust and its subsequent amendments, including Deborah, Cynthia, and Howard.

Deborah, the sole beneficiary under the Second Amendment and then-current trustee, opposed Clifton Jr.’s petition. She denied that Clifton Sr. “suffered from dementia” or “severe confusion,” or that the Second Amendment was the product of paranoid thinking or mistaken beliefs. Instead, she asserted Clifton Sr. intentionally disinherited Clifton Jr. because of their turbulent relationship.

In July 2017, for reasons not made clear in the appellate record, Clifton Jr. filed a request for dismissal of his petition. The court (Judge Robert Longstreth) ultimately granted his request on July 11, 2017.

• • D. The Deaths of Clifton Jr. and Deborah

On October 25, 2017, Deborah and Clifton Jr. both died in an apparent murder-suicide perpetrated by Clifton Jr. Deborah died intestate and without children.

• • E. New Trustee’s Petition for Instructions

In March 2018, the court (Judge Longstreth) appointed Gloria Collins as Trustee of the Trust. In November 2019, the case was reassigned to Judge Julia Kelety.

In December 2019, the Trustee filed a petition for instructions (Petition for Instructions). (Prob. Code, § 17200.)[2] The Trustee explained that Cynthia and Howard were making competing claims of entitlement to Clifton Sr.’s trust estate. Cynthia contended the income and residue of the Trust estate should be distributed to Deborah’s estate, which would flow to Cynthia as Deborah’s heir under the laws of intestacy. But Howard contended that because Clifton Sr. had expressly disinherited Cynthia, the income and residue of the Trust estate should flow to Howard “as the only named remainder beneficiary.”

The petition asserted that “[a]n actual controversy now exist[s] as to how [the Trustee] should proceed in view of the Trust’s lack of provisions and/or ambiguity as to how the Trust income and assets are to be distributed in view of Deborah’s death occurring subsequent to [Clifton Sr.]’s death.” The Trustee sought instructions on the following issues: (1) whether Deborah’s income interest under the Trust terminated upon her death; (2) who is entitled to the income from the Trust; (3) who is entitled to the residue of the Trust; and (4) whether the Trust should continue to be administered through October 24, 2037, or whether its assets should be distributed and the Trust dissolved as soon as practicable.

Cynthia and Howard each responded to the Trustee’s petition. Cynthia argued that under the plain meaning of the Second Amendment, because Deborah survived Clifton Sr., Deborah’s estate—and Cynthia as its sole intestate heir—was entitled to the Trust income until 2037. Cynthia maintained that “[a]lthough [she] purports to be disinherited in the Trust, she is not disinherited as [Deborah]’s intestate [heir].” (Boldface omitted.)

Howard argued in her response that the Second Amendment accurately reflected Clifton Sr.’s intent. She argued Deborah’s estate had nothing to pass to Cynthia because Deborah’s income interest in the Trust ended when she died. (See § 16345, subd. (d) [“An income interest ends on the day before an income beneficiary dies . . . .”].) Howard reasoned there was no need to wait until 2037 to distribute the Trust residue to her because Clifton Sr. would have wanted her to receive the Trust residue immediately upon Deborah’s death—he just had not contemplated that she would die so soon after he did.

In a section of Howard’s response titled “THE TRUSTOR’S INTENT,” she argued the evolution of Clifton Sr.’s Trust documents showed that “his intentions changed” over time. The Trust initially directed that all Trust property be distributed to Deborah, Cynthia, and Cynthia’s daughters immediately upon Clifton Sr.’s death. But Clifton Sr. eventually “chose to grant only an income interest to” Deborah, with Howard ultimately receiving the Trust residue. Howard characterized herself as Clifton Sr.’s “friend, partner, and confidant.”

Howard asserted Clifton Sr.’s “stated rationale for granting Deborah an income-only interest until age 65 was his concerns over her substance abuse and mental health problems.”[3] His “intent in giving Deborah only an income interest was to preserve the trust property from waste and impairment.”

Howard pointed out that whereas Cynthia was specifically disinherited in the Second Amendment, Howard “was a consistent beneficiary in all of [Clifton Sr.]’s Trust documents.”

The probate court (Judge Kelety) heard the Petition for Instructions on February 10, 2020. The hearing was not reported. The court found the Second Amendment ambiguous with respect to the scenario in which Deborah survived Clifton Sr. but died before 2037. The court found it was “clear . . . that [Clifton Sr.] intended that the entire Trust passes to Ms. Howard upon the death of Deborah.” First, the court observed that the Second Amendment granted an income interest to Deborah, but not to “ ‘her estate.’ ” Second, because Howard would have received the entire Trust estate immediately following Clifton Sr.’s death if Deborah had predeceased him, the court reasoned “t belies common sense to consider that [Clifton Sr.] intended for Ms. Howard to . . . have to wait [20] years if Deborah died” shortly after him.

“Res judicata—law Latin for ‘a thing adjudicated’—is an umbrella term encompassing issue preclusion and claim preclusion, both of which describe the preclusive effect of a final judgment [or order].”[5] ([i]Guerrero v. Department of Corrections & Rehabilitation (2018) 28 Cal.App.5th 1091, 1098 (Guerrero); see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823 (DKN Holdings) [claim preclusion and issue preclusion are “two separate ‘aspects’ of an overarching doctrine”].) “Claim and issue preclusion have different requirements and effects.” (Samara, supra, 5 Cal.5th at p. 326.)

“Claim preclusion ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ ” (DKN Holdings, supra, 61 Cal.4th at p. 824, second italics added; see Samara, supra, 5 Cal.5th at p. 326 [claim preclusion applies to “entire causes of action”].) “Causes of action are considered the same if based on the same primary right.” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 325.) “If claim preclusion is established, it operates to bar relitigation of the claim altogether.” (DKN Holdings, at p. 824.) “[C]laim preclusion applies not just to what was litigated, but more broadly to what could have been litigated.” (Guerrero, supra, 28 Cal.App.5th at p. 1098, italics added.)

“Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.” (DKN Holdings, supra, 61 Cal.4th at p. 824, second italics added.) “It applies only ‘(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’ ” (Samara, supra, 5 Cal.5th at p. 327.) The final adjudication requirement is satisfied by “final orders in proceedings under the Probate Code.” (Key v. Tyler (2019) 34 Cal.App.5th 505, 534.) “ ‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.’ ” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511-512, italics added (Hernandez); see In re Marriage of Brubaker and Strum (2021) 73 Cal.App.5th 525, 539 (Brubaker).) “[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.” (Hernandez, at p. 511, italics added.) “And the ‘ “necessarily decided’ ” prong means only that ‘the issue not have been “entirely unnecessary” to the judgment in the initial proceeding.’ ” (Key, at p. 534.) “In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding.” (Hernandez, at p. 511; see Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1326-1327 (Ayala).)

Generally speaking, whereas “claim preclusion bars claims that could have been raised in the first proceeding[,] issue preclusion requires actual litigation of issues.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1164, italics added.) However, once an issue has been litigated, issue preclusion bars relitigation of any legal theory or factual matter encompassed by that issue. (See Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565-1566 (Border Business Park); Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401 (Murphy).) Thus, if a legal theory, factual matter, or “defense[ ] to the cause of action urged by the plaintiff” “was within the scope of the [prior] action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.” (Murphy, at pp. 402, 401, italics added.)

“Even if the[ ] threshold requirements” for applying issue preclusion “are satisfied, courts may consider the public policies underlying issue preclusion in determining whether the doctrine should be applied.” (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686 (Meridian Financial); see Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 879.) “These policies include ‘conserving judicial resources and promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments which undermine the integrity of the judicial system, and avoiding the harassment of parties through repeated litigation.’ ” (Meridian Financial, at pp. 686-687.)

We review de novo an order sustaining a demurrer on issue preclusion grounds. (Brubaker, supra, 73 Cal.App.5th at p. 539 [issue preclusion]; Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016 [demurrer].) “We review the trial court’s refusal to grant leave to amend under the abuse of discretion standard.” (Villafana, at p. 1017.)

• • B. Analysis

Cynthia contends the probate court erred by applying issue preclusion to the incapacity issue because the identical issue was not actually and necessarily litigated in connection with the Petition for Instructions. Although we acknowledge this is a close case, we conclude the probate court properly applied issue preclusion.

The probate court based its conclusion, in large part, on Murphy, supra, 164 Cal.App.4th 376, which the parties discuss extensively in their appellate briefing. We therefore begin by discussing Murphy in some detail.

The probate court in Murphy granted a conservator’s “substituted judgment” petition seeking approval to execute, on the conservatee’s behalf, estate planning documents mirroring and essentially ratifying documents the conservatee previously executed, which left nearly everything to the conservatee’s daughter and effectively disinherited the son. (Murphy, supra, 164 Cal.App.4th at pp. 383-384.) The court found that granting the petition satisfied the applicable “reasonably prudent person” standard (id. at p. 398) and “was in the best interest of [the father]’s estate” (id. at p. 391).

After the father died about one year later, the son sued the daughter for breach of contract (that the parents had promised each other to leave their respective estates equally to their children) and to nullify the father’s estate planning documents on the grounds of the daughter’s alleged undue influence and fraud. (Murphy, supra, 164 Cal.App.4th at pp. 383, 392.) The daughter moved to exclude evidence supporting the son’s claims on issue preclusion grounds. (Id. at p. 393.) She maintained “the validity of [the father]’s living trust, including the issues of [his] capacity, intent and undue influence were actually litigated and finally decided on the merits in the substituted judgment proceeding.” (Ibid.) The trial court denied the motion, finding (among other things) “the issue of undue influence was not tried.” (Ibid.) The court ultimately ruled in the son’s favor and imposed a constructive trust over half of the father’s estate. (Id. at p. 394.)

The Court of Appeal reversed, finding issue preclusion applied. (Murphy, supra, 164 Cal.App.4th at pp. 376, 398-404.) The court found both proceedings involved identical issues because the petition in the substituted judgment proceeding alleged the father’s estate planning documents “ ‘were executed . . . freely and are not the result of fraud or undue influence by any party,’ and that those instruments reflected his testamentary estate plan.” (Id. at p. 400.)

The Murphy court also found the actually-litigated requirement was satisfied. The court stated that, although “t is clear that in the substituted judgment proceeding [the son] never raised the argument that [the father]’s proposed testamentary disposition conflicted with a prior testamentary agreement” with the mother, “that argument is barred by collateral estoppel because it [i]could have been raised.” (Murphy, supra, 164 Cal.App.4th at p. 402, italics added.) The court concluded this issue was “within the scope of the” reasonably prudent person standard that governed the substituted judgment proceeding because a court would be unlikely to authorize a conservator to execute estate planning documents that conflicted with a conservatee’s testamentary agreement. (Ibid.)

The court also found the undue influence and fraud issues were actually litigated in the substituted judgment proceeding because the conservatee’s petition alleged the estate planning documents were not the result of either, and the court “was required to consider all relevant circumstances.” (Murphy, supra, 164 Cal.App.4th at p. 403.) The relevant circumstances included the court’s familiarity with the case and “the family’s dysfunctional history,” which included allegations by the son during prior conservatorship proceedings that the daughter was exerting undue influence over the father and making misrepresentations to him about the son. (Ibid.)

Notably, the Murphy court further concluded that even if the fraud and undue influence issues had not been actually litigated in the substituted judgment proceeding, issue preclusion nonetheless applied because they “could have been raised” in that proceeding to address whether “the proposed disposition plan was in the best interest of [the father] and his estate and that the plan was objectively reasonable.” (Murphy, supra, 164 Cal.App.4th at p. 404.)

The Murphy court based its holding, in part, on Border Business Park, supra, 142 Cal.App.4th 1538, which we also find instructive. (See Murphy, supra, 164 Cal.App.4th at pp. 398, 401, 402, 404.) In Border Business Park, the trial court sustained a city’s demurrer to a developer’s breach of contract claim on the ground the developer failed to allege it had complied with Government Code prelitigation claim-presentation requirements, which the city maintained applied. (Border Business Park, at p. 1561.) Later, the developer sued the city again for breaching the same contract. (Id. at p. 1562.) After the developer won at trial, the trial court granted the city’s motion for new trial on issue preclusion grounds. (Ibid.) The court found the earlier demurrer ruling conclusively established that the developer had not previously presented a prelitigation claim, and that the developer’s new assertions that such a claim “was not required or that compliance with the claim requirement was waived or excused under any theory were conclusively adjudicated adversely to [the developer] in the prior proceeding because [the developer] could have raised those contentions in its opposition to the demurrer, but did not do so.” (Ibid.)

The Court of Appeal affirmed, explaining that “ ‘ “[d]espite the established principle that” ’ ” issue preclusion bars relitigation “ ‘ “only on issues actually litigated, it is often said that a judgment is binding as to all matters which were raised or which might have been raised.” ’ ” (Border Business Park, supra, 142 Cal.App.4th at p. 1566.) The court found issue preclusion applied because “[a]ny of the contentions [the developer] now asserts could have been raised in its opposition to the demurrer.” (Ibid., italics added.)

Applying the principles set forth in Murphy and Border Business Park, we conclude that although “t is clear that in the [Petition for Instructions] proceeding [Cynthia] never raised the argument that” Clifton Sr. lacked capacity to execute the Second Amendment, “that argument is barred by [issue preclusion] because it [i]could have been raised.” (Murphy, supra, 164 Cal.App.4th at p. 402, italics added.)

We begin by defining the scope of the issue addressed in connection with the Petition for Instructions. (Murphy, supra, 164 Cal.App.4th at p. 401 [issue preclusion applies if a relevant and related issue “was within the scope of the [prior] action”].) Cynthia frames the issue narrowly as “an issue of law regarding the proper interpretation of the Second Amendment based on the undisputed facts” regarding the sequence in which Clifton Sr. and Deborah died. The Trustee frames the issue broadly as addressing “who was entitled to distribution of the Trust assets.” Based on our review of the entire appellate record (see Hernandez, supra, 46 Cal.4th at p. 511; Ayala, supra, 13 Cal.App.5th at pp. 1326-1327), we find Cynthia’s framing too narrow, and the Trustee’s too broad.

A fair framing of the issue addressed in connection with the Petition for Instructions is how did Clifton Sr. intend to distribute the Trust estate? By incorporating Clifton Sr.’s intent—the cornerstone for interpreting estate planning instruments (see § 21102)—the scope of the issue encompasses the issue addressed in connection with the Contest Petition: Did Clifton Sr. have the capacity to form an intent regarding how to distribute the Trust estate?

The parties’ submissions to the probate court in connection with the Petition for Instructions support our framing. The Trustee’s petition alleged a “lack of provisions and/or ambiguity as to how the Trust income and assets are to be distributed” in light of the fact Deborah survived Clifton Sr. but did not live to October 24, 2037. Howard responded that the Second Amendment and other evidence reflected Clifton Sr.’s intent to immediately distribute the Trust estate to her under the present scenario. Indeed, she labeled a section of her response “THE TRUSTOR’S INTENT.” (Italics added.) She argued the evolution of the Trust documents’ dispositive provisions showed that Clifton Sr.’s “intentions changed” over time; he “specifically disinherited” Cynthia; he “chose to grant only an income interest” to Deborah; and his “stated rationale for granting Deborah an income-only interest . . . was his concern over her substance abuse and mental health problems.” (Italics added.) Howard supported her response with a declaration explaining that Clifton Sr. had “bec[o]me more and more concerned and upset over the actions of his children.” Howard’s response placed Clifton’s Sr.’s intent and state of mind squarely at issue.

As did Cynthia’s response. In claiming the Trust income as Deborah’s intestate heir, Cynthia asserted that “although [Cynthia] purports to be disinherited in the Trust, she is not disinherited as [Deborah]’s intestate [heir].” (Italics added.) But the First and Second Amendments so clearly disinherited Cynthia—they stated Clifton Sr. was “intentionally leav[ing] nothing to his child, Cynthia”—her use of the word purports indicates she questioned the validity of the disinheritance on other grounds, such as Clifton Sr.’s alleged incapacity. Indeed, before Cynthia ever filed her response to the Petition for Instructions, she had been served with Clifton Jr.’s earlier petition to invalidate the Second Amendment on the basis of Clifton Sr.’s alleged incapacity. And Cynthia’s own response to the Petition for Instructions potentially implicated Clifton Sr.’s capacity by referencing his “failing health prior to his death,” which occurred just four days after he executed the Second Amendment.

On this record, the issue before the probate court in connection with the Petition for Instructions was not a narrow question of law regarding contract interpretation—it was a broader inquiry regarding Clifton Sr.’s testamentary intent. So framed, Clifton Sr.’s alleged incapacity was a legal theory or factual matter “within the scope of the [prior] action, related to the subject-matter[,] and relevant to the issues, so that it could have been raised.” (Murphy, supra, 164 Cal.App.4th at p. 401.) Consequently, the probate court’s ruling on the Petition for Instructions making a “clear” finding as to what Clifton Sr. “intended” precludes Cynthia from relitigating his state of mind in connection with the Contest Petition.[6]

Cynthia makes no attempt to distinguish Border Business Park, and we find her attempts to distinguish Murphy unconvincing. She argues that whereas the pleadings in the earlier and later proceedings in Murphy both expressly raised fraud and undue influence, there are no similarly overlapping allegations here. (See Murphy, supra, 164 Cal.App.4th at p. 401.) But the Murphy court made clear that even had the pleadings not so clearly overlapped, issue preclusion still applied because fraud and undue influence “could have been raised” in the earlier proceeding to address the issues of whether “the proposed disposition plan was in the best interest of [the father] and his estate and that the plan was objectively reasonable.” (Id. at pp. 403-404.) That framing of the issues is similarly broad to our framing of the intent issue here.

Cynthia also points out that, unlike the probate court judge in Murphy who had presided over the earlier conservatorship proceedings in which the son raised undue influence and fraud concerns, Judge Kelety (who ruled on both the Petition for Instructions and the Contest Petition) had not yet been assigned the case when Clifton Jr. filed and dismissed his petition to invalidate the Second Amendment on incapacity grounds. We will not presume Judge Kelety was unfamiliar with events preceding her involvement in the case, particularly when the record shows little transpired between the dismissal of Clifton Jr.’s petition and the time Judge Kelety was assigned. And, in any event, as discussed above, many additional aspects of the parties’ pleadings placed Clifton Sr.’s intent at issue in the Petition for Instructions such that Cynthia could have raised his alleged incapacity in that proceeding.

Having concluded the threshold requirements for applying issue preclusion are satisfied, we must now determine whether applying the doctrine in this case would be consistent with the public policy considerations underlying the doctrine. (See Meridian Financial, supra, 67 Cal.App.5th at p. 686.) The probate court articulated two applicable public policy considerations. First, because Clifton Sr.’s “alleged incapacity would have been an affirmative defense to the Petition for Instructions,” applying the doctrine “is consistent with the rule that “ ‘[a] party who fails to plead affirmative defenses waives them.’ [Citation.] ” Second, by claiming in her response to the Petition for Instructions that she was entitled under the Second Amendment to 100 percent of Deborah’s interest in the Trust income, Cynthia “implied that the Second Amendment was valid,” which “is totally inconsistent with her assertion in the Contest Petition that the Second Amendment is invalid.” Thus, applying issue preclusion “would be consistent with the doctrine of judicial estoppel, which precludes a party from taking inconsistent positions in judicial proceedings,” because “the court relied in part on Cynthia’s implied assertion that the Second Amendment was valid.”

We agree that applying issue preclusion here promotes the public policies of “ ‘conserving judicial resources and promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments which undermine the integrity of the judicial system, and avoiding the harassment of parties through repeated litigation.’ ” (Meridian Financial, supra, 67 Cal.App.5th at pp. 686-687.)

Cynthia maintains it would be unjust to apply issue preclusion because requiring her to have raised incapacity in response to the Petition for Instructions would have required her to pursue a less favorable outcome than the one she pursued. That is, whereas Cynthia stood to receive Deborah’s 100-percent interest in Trust income under the Second Amendment, she stood to receive only a 70-percent interest in Trust income under the First Amendment. But we see nothing unjust about preventing a party from later asserting a relevant legal theory she knowingly and opportunistically withheld in earlier proceedings so as to maximize her recovery under a theory she believes is invalid. Indeed, this is precisely the type of gamesmanship issue preclusion aims to prevent. (See Meridian Financial, supra, 67 Cal.App.5th at pp. 686-687.)

Finally, we must determine whether the probate court abused its discretion in denying Cynthia leave to amend to allege additional facts showing that applying issue preclusion would be unjust. Cynthia points out that her trial counsel represented at the demurrer hearing that she could allege additional facts on this issue, and that the Trustee’s trial counsel responded that those facts predated his involvement in the case. However, this overlooks that the Trustee’s trial counsel advised the probate court that, although Cynthia’s cited examples predated the Trustee’s counsel’s involvement in the case, they also predated the Petition for Instructions in which the Trustee took positions contrary to those on which Cynthia purports to have relied. We see no abuse of discretion in the probate court’s finding that Cynthia’s proposed amendments would not have explained why she did not raise incapacity in response to the Petition for Instructions.

• III. DISPOSITION

The order is affirmed. The appellant shall pay the respondent’s costs on appeal.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

[1] It is unclear why the Trust provided that Ashley and Britteny would receive a portion of the Trust estate if the named beneficiaries, which included them, did not survive Clifton Sr.

[2] Further undesignated statutory references are to the Probate Code.

[3] Howard stated in a supporting declaration that in the years after Clifton Sr. prepared the initial Trust, “he became more and more concerned and upset over the actions of his children[,] including such things as substance abuse, the company they kept, mental health, and general attitude and demeanor.”

[4] Cynthia initially claimed standing as Deborah’s intestate heir, and later based it on the fact she had since been appointed the administrator of Deborah’s estate.

[5] Courts “now refer to ‘claim preclusion’ rather than ‘res judicata’ [citation], and use ‘issue preclusion’ in place of ‘direct or collateral estoppel.’ ” (Samara v. Matar (2018) 5 Cal.5th 322, 326 (Samara).)

[6] This is not to say that every time a court interprets estate planning documents the parties will be precluded from later raising the issue of capacity. Rather, we base our conclusion here on the specific record before us, in which the parties’ submissions throughout the probate case broadened the scope of the issue sufficiently to encompass Clifton Sr.’s capacity.