Judge: Theresa M. Traber, Case: 19STCV16203, Date: 2023-05-03 Tentative Ruling


Case Number: 19STCV16203    Hearing Date: May 3, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     May 3, 2023               Verdict Returned: August 5, 2022

                                                          

CASE:                         Colin McClintock v. Henry George Brennan et al.

 

CASE NO.:                 19STCV16203 Consolidated with 20STCV01975

           

 

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL

 

MOVING PARTY:               Defendant Lisa Brennan

 

RESPONDING PARTY(S):  Plaintiff Colin McClintock

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            Plaintiff Colin McClintock alleged in this action that Defendants engaged in financial elder abuse by inducing Plaintiff’s father, Sandy McClintock, to make Defendant Lisa Brennan the sole beneficiary of a $200,000 life insurance policy.  Judgment was entered pursuant to jury verdict on March 9, 2023.

 

            Defendant Lisa Brennan moves for judgment notwithstanding the verdict on Plaintiff’s cause of action for financial elder abuse pursuant to Probate Code § 21380, et seq., and in the alternative, for a new trial on that claim.

           

TENTATIVE RULING:

 

            Defendant Brennan’s motion for judgment not withstanding the verdict is DENIED.

 

            Defendant’s alternative motion for new trial is DENIED.

DISCUSSION:

 

Motion for Judgment Notwithstanding the Verdict

 

            Defendant Lisa Brennan moves for judgment notwithstanding the verdict on the ground that the conclusive statutory presumption under Probate Code § 21380 does not apply because Plaintiff has failed to demonstrate the applicability of that provision pursuant to Probate Code § 21392.

 

Legal Standard

 

            Code of Civil Procedure section 629 states that “[t]he court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc. § 629.)

 

            A JNOV motion ordinarily challenges whether the evidence was sufficient to prove the claims or defenses asserted by the opposing party and now embodied in the jury’s verdict. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733-34; see Martin v. Ideal Packing Co. (1957) 156 Cal.App.2d 232, 235 [a JNOV motion is “in the nature of a demurrer to the evidence”].) It thus has the same function as a motion for nonsuit or directed verdict, the only difference being that the JNOV motion lies after a verdict for the opposing party has been rendered. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327; CC-California Plaza Assocs. v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1050.)   

 

            All evidence supporting the verdict is presumed true, so the issue is whether the facts then constitute a prima facie case or defense as a matter of law.  (Fountain Valley Chateau Blanc Homeowner's Ass’n v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.) “The court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The court must deny the motion if there is any substantial evidence to support the verdict.” (Begnal v. Canfield & Assocs., Inc. (2000) 78 Cal.App.4th 66, 72.  

 

            A JNOV motion is governed by the same rules that govern a motion for directed verdict or nonsuit. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 417 [disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738].) Further, a JNOV motion “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1137-38.) A JNOV in favor of a defendant is proper “only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.” (See Reynolds v. Wilson (1958) 51 Cal.2d 94, 99.)  

 

Jurisdiction to Rule on Motion

 

            The purpose of a JNOV motion “is to allow a party to prevail as a matter of law where the relevant evidence is already in.”  (DLI Properties LLC v. Hill (2018) 29 Cal.App.5th Supp. 1, 6; see Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743 [“The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.”].)  Nonetheless, a trial court's discretion in granting a JNOV motion is severely limited.  (Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 568.)

 

            A motion for JNOV must be decided by the trial court within 75 days after the clerk’s service of notice of entry of the judgment. (Code Civ. Proc. §§ 629(b), 659, 660(c); see Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277.)  

 

[Code of Civil Procedure section 629] specifically limits a trial court’s power to rule on the motion in the following ways: First, the trial court must enter j. n. o. v. ‘before . . . expiration of its power to rule on a motion for a new trial,’ otherwise the judgment is invalid.  Section 660 indicates that ‘the power of the court to rule on a motion for a new trial shall expire [75] days from and after the mailing of notice of entry of judgment by the clerk of the court . . .’ Second, on the trial court's own motion it can grant j. n. o. v., but only after giving five days notice to the parties and only in accordance with the procedure just noted.  Third, the trial court is precluded from ruling on a motion for j. n. o. v. ‘until the expiration of the time within which a motion for a new trial must be served and filed . . .’ which according to section 659 is 15 days ‘of the date of mailing notice of entry of judgment . . .’    

 

(Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 963 [decided before January 1, 2019, amendment extending time period for court to rule on new trial motion to 75-day period].)  Thus, a trial court “can grant j. n. o. v. so long as it acts before expiration of its power to rule on a motion for a new trial, [75] days, and¿after expiration of the time within which a motion for a new trial must be served and filed, 15 days.” (Id. at 964.)

 

            In this case, notice of entry of judgment was mailed on March 10, 2023, so the Court has power to rule on Brennan’s motions through May 24, 2023.  Accordingly, the Court has jurisdiction to rule on the currently pending motions at the May 3rd hearing or at any time before May 24, 2023.  

 

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Substantive Discussion

 

In his individual action, Plaintiff Colin McClintock (Plaintiff) asserted claims for financial elder abuse and unjust enrichment against Defendant Lisa Brennan (Brennan) challenging her receipt of $200,000 in life insurance proceeds under a form she filled out and then had the decedent Sandy McClintock sign to designate her as the sole beneficiary. Plaintiff asserted his elder abuse claim under Probate Code § 21380, which creates a statutory presumption that “an instrument making a donative transfer” to certain identified persons is “the product of fraud or undue influence.”  (Probate Code §21380(a).) Plaintiff pursued two alternate theories of liability under §21380. 

 

He first challenged Brennan’s receipt of life insurance proceeds on the basis that she was “the person who drafted the instrument” -- that is, the beneficiary designation -- to effectuate a donative transfer to herself, such that the transfer was “presumed to be the product of fraud or undue influence,” and that the statutory presumption is “conclusive.” (Probate Code §21380(a), (c); see Rice v. Clark (2002) 28 Cal. 4th 89, 98 [predecessor statute, Probate Code 2135(e)(B), “makes the presumption of disqualification conclusive as to the drafter-transferee”].)  As indicated by the Law Revision Commission Comments, 2010 Addition, the term “instrument” is defined in Probate Code § 45 as including any “writing that designates a beneficiary or makes a donative transfer.” (Probate Code § 45.)  During trial, the Court granted Plaintiff’s motion for partial directed verdict based on its conclusion that Defendant Lisa Brennan “drafted” the change of beneficiary forms within the meaning of the statute. The Court then devised jury instructions based on the law and the parties’ arguments that asked the jury to decide whether the life insurance policy was valued at more than $5,000, as required under Probate Code §21382(e).  They found that it was, thus forming the predicate for a verdict in Plaintiff’s favor on this claim. The jury found that the value of the insurance policy was $134,000, and that Plaintiff’s damages were $35,000.  (Plaintiff’s Exh. C, pp. 2-3.) 

 

Plaintiff also pressed his claim under §21380 against Brennan on the ground that she was a “care custodian of a transferor who is a dependent adult.” (Probate Code §21380(a)(3).)  Under this provision, there is a presumption that the transaction is the product of fraud or undue influence, but that presumption may be rebutted by “proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.” (Probate Code §21380(b).)  On this count, the jury found against Plaintiff.  The jury’s verdict was that although Sandy McClintock was a dependent adult and Brennan was his care custodian, her conduct did not harm Plaintiff.  (Special Verdict Form (Individual Case), No. 10-13.)  In addition, the jury found Brennan proved by clear and convincing evidence that the transfer did not result from undue influence exercised over Sandy McClintock.  (Id., No. 23.) 

 

In her JNOV motion and motions for new trial, Brennan raises a new legal argument challenging the Court’s trial rulings by pointing to Probate Code § 21392(a)’s language that the relevant statutory part, entitled Presumption of Fraud or Undue Influence, applies only to certain instruments and arguing that the beneficiary forms here are not instruments within the scope of §21392(a).  Subdivision (a) of § 21392 provides: 

 

This part shall apply to instruments that become irrevocable on or after January 1, 2011. For the purposes of this section, an instrument that is otherwise revocable or amendable shall be deemed to be irrevocable if, on or after January 1, 2011, the transferor by reason of incapacity was unable to change the disposition of the transferor’s property and did not regain capacity before the date of the transferor’s death.

 

(Probate Code § 21392(a).)  Brennan argues the beneficiary designations here are not governed by the Presumption of Fraud or Undue Influence part, including § 21380, because they were fully revocable during Sandy McClintock’s life, and there is no evidence, nor even an argument from Plaintiff, that the decedent was mentally incapacitated before his death.  Brennan uses this contention to urge the Court to enter judgment in her favor or, at a minimum, grant her a new trial. 

 

            In the Court’s view, Brennan’s argument betrays a fundamental misunderstanding of the purpose and meaning of §21392(a). As is explained below, the language of subdivision (a) of §21392 effectuates the Legislature’s intent to apply certain newly amended probate statutes in a partially retroactive manner, making the new laws applicable to wills, trusts and other instruments that were executed before the amendments, but only if they became irrevocable after the amendments’ effective date.  (Rice v. Clark (2002) 28 Cal. 4th 89, 100; Bank of America v. Angel View Crippled Children’s Foundation (1999) 72 Cal. App. 4th 451, 457-458.)  Whether the instrument was revocable as originally drafted is largely irrelevant.  An instrument that is revocable by its terms generally becomes irrevocable upon the death or mental incapacity of the person holding the power to revoke the instrument.  (Babbitt v. Superior Court (2016) 246 Cal. App. 4th 1135, 1144; Drake v. Pinkham (2013) 217 Cal. App. 4th 400, 408.)  Section 21380 applies to a donative instrument so long as it became irrevocable – through the death or incapacity of the donor – after January 1, 2011.  Here, there is no question that the beneficiary designation became irrevocable after that date, on August 18, 2018 when Sandy McClintock died.

 

            The case law construing similar applicability statutes demonstrates how §21392 should be interpreted and applied.  The Court of Appeal in Bank of America, supra, ruled on whether the predecessor to §21380 could be applied to invalidate a donative transfer to a beneficiary who drafted the instrument and had it executed before the effective date of the statute.  Like § 21380 now, its predecessor, Probate Code § 21350, created a presumption of fraud or undue influence where the beneficiary drafted an instrument resulting in a donative transfer to himself.  Section 21350 was enacted in 1993, along with § 21355, which provided that the new statute would apply only to instruments that became irrevocable on or after September 1, 1993.  (Id., at pp. 455-456.)  The Court of Appeal construed the statute’s declared application to embrace to instruments drafted before the effective date:

 

Imbedded in such a declaration is a clear intent that the sections are to have retroactive application. The Legislature was surely aware that a multitude of California trust and other instruments containing donative transfers which had already been drafted would be governed by this date of applicability—particularly, revocable living trusts which would become irrevocable by the death of the trustor on or after September 1, 1993. As appellants observe, the Legislature could have rendered sections 21350 and  21351 applicable to instruments which were executed after September 1, 1993, but chose not to.

 

(Id., at pp. 457-458.) While recognizing the retroactive application of the new statutory presumption to instruments executed before enactment, the appellate court also explained the importance of avoiding due process violations that might arise from imposing new legal restrictions on vested interests.  (Id., at pp. 458-459.)  Thus, the Court of Appeal in Bank of America concluded that the former applicability section, § 21355, should be interpreted to apply only to instruments that became irrevocable after the 1993 enactment, because up until that point a revocable instrument could be modified or revoked.  (Id., at p. 459.)  Applying these concepts to the facts in that case, the Court of Appeal held the statutory presumption applied to the trust at issue because the trust’s settlor died after the effective date, thus making the trust irrevocable after the new statute was enacted.  The same is true here, where Sandy McClintock died well after the 2011 effective date, so the beneficiary designation “became irrevocable on or after January 1, 2011.” 

 

            In Rice v. Clark, the Supreme Court settled the application of § 21355 to Probate Code amendments enacted in 1995, holding that under the clear language of that statute, the 1995 amendments “would apply to instruments executed before the amendments but becoming irrevocable after that date.”  (Rice v. Clark, supra, at p. 100.)  Because the donor’s testamentary gifts in Rice “did not become irrevocable until her death in 1996, after the 1995 amendments’ effective date,” those amendments were held applicable to the donative instruments.  (Id., at pp. 99-100.) 

 

            The Supreme Court settled the application of a similar provision in Donkin v. Donkin (2013) 58 Cal. 4th 412.  The issue in Donkin was whether a statutory limitation on enforcing “no contest” clauses in wills applied to a beneficiary’s challenge to a specific will.  Under section 21315 of the Probate Code, the statutory limitation was applicable “to any instrument, whenever executed, that became irrevocable on or after January 1, 2001.”  (Probate Code §21315(a).)  The Supreme Court construed the law based in part on the California Law Commission’s report recommending that the restriction “apply to any instrument, whenever executed, with one exception. It would not apply to an instrument that became irrevocable before January 1, 2001,” and the Legislature’s adoption of that recommendation.  (Id., at pp. 428-429, quoting Cal. Law Revision Com., First Supp. To Memo. 2008-3, Revision of No Contest Clause Statute (Transitional Issues) (Jan. 15, 2008) pp. 1-15 (First Supplement).)  “The January 1, 2001 date was chosen to ‘preserve existing law as to instruments that became irrevocable before the enactment of the existing scheme of statutory exceptions to the enforcement of a no contest clause.’”  (Donkin, supra, at pp. 428-429, quoting Revision Report at p. 399.)  Applying this standard to the facts in Donkin, the Supreme Court held that the trust at issue, though revocable by its terms, became irrevocable upon the deaths of the settlors, both of whom died after 2001.  (Donkin, supra, at p. 429.)  As a result, under the plain language of §21315(a), because the trust “became irrevocable” after January 1, 2001, the new statutory restrictions on “no contest” clauses governed any challenges to the trust.  (Id.)

 

             In her moving papers, Brennan emphasizes the revocable character of the beneficiary designations she drafted.  As is clear from the cases discussed above, however, the fact that these instruments were revocable as originally drafted does not resolve the inquiry.  Instead, the question is when the beneficiary designations became irrevocable. All legal authority plainly directs that such instruments become irrevocable upon the death of the donor.  (See also Cal. Trust and Probate Litigation (C.E.B. 1st ed., March 2022 Update) Statutorily Disqualified Donees and Trustees, p. 6A-7, §6A.5; Cal. Practice Guide PROBATE (THE RUTTER GROUP 2021) p. 16-172, §16:517.30.)  Like a revocable trust or any other instrument that is revocable by its terms, the donor retains the right to change the terms of the instrument until it become irrevocable upon his or her death or the mental incapacity of the person holding the power to revoke the instrument.  (Babbitt v. Superior Court (2016) 246 Cal. App. 4th 1135, 1144; Drake v. Pinkham (2013) 217 Cal. App. 4th 400, 408.)  Here, the parties are in apparent agreement that the beneficiary designations did not become irrevocable before Sandy McClintock’s death because of any mental incapacity.  As a result, these instruments became irrevocable upon his death on August 18, 2018.  Because Section 21380 applies to a donative instrument so long as it became irrevocable after January 1, 2011, the statutory presumption applied by the Court at trial governs Plaintiff’s claim against Brennan. 

 

            Brennan raises a vigorous argument that Plaintiff failed to prove and even conceded that Sandy McClintock was not mentally incapacitated before his death, contending that Plaintiff’s lack of proof on this issue means that § 21380 does not apply to this case. (Moving papers, pp. 8-12; Reply, pp. 3-8.)  This argument is at odds with the law governing when and how an instrument becomes irrevocable and the plain meaning of the statute.  If the donor who executed a revocable instrument effectuating a donative transfer died after January 1, 2011, the statute clearly applies because the instrument became irrevocable after the statute’s effective date.  Such an application is mandatory under § 21392(a), which dictates that the statute “shall apply to instruments that become irrevocable on or after January 1, 2011.” (Probate Code § 21392(a) [Emphasis added].)  The statute also addresses an alternative situation where the instrument is not irrevocable by its terms or because of the donor’s death, prescribing that “an instrument that is otherwise revocable or amendable shall be deemed to be irrevocable if, on or after January 1, 2011, the transferor by reason of incapacity was unable to change the disposition of the transferor’s property and did not regain capacity before the date of the transferor’s death.”  In a situation, unlike the one here, where the donor became mentally incapacitated and, thus, unable to modify or revoke the instrument before the effective date of January 1, 2011, the second clause of subdivision would apply.  In those circumstances, the instrument would be deemed to be irrevocable before the effective date of the statute, so it would not be subject to the statutory presumption at issue.  Because the facts here do not support such a result, the Court concludes that Plaintiff’s failure to prove incapacity is irrelevant to whether § 21380’s conclusive presumption applies to the beneficiary designations signed by Brennan.    

 

Brennan’s JNOV motion is grounded entirely on her erroneous contention that §21392 bars application of the conclusive statutory presumption under §21380, so the Court denies the motion in its entirety.

 

Motion for New Trial

 

            As an alternative to her JNOV motion, Defendant Lisa Brennan moves for a new trial on a several addressed below.

 

Legal Standard

 

Code of Civil Procedure section 657 provides, in pertinent part, as follows: 

 

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 

 

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 

 

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 

 

3. Accident or surprise, which ordinary prudence could not have guarded against. 

 

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. 

 

5. Excessive or inadequate damages. 

 

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. 

 

7. Error in law, occurring at the trial and excepted to by the party making the application. 

 

When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated. 

 

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. 

 

(Code Civ. Proc. § 657.) A motion for new trial is a creature of statute and the Court may grant a new trial only by conforming to the statutory procedures.¿ (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900.)¿ Further, under Article VI, section 13, of the California Constitution, no judgment shall be set aside or new trial granted unless, after an examination of the entire cause, including the evidence, the Court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.¿ (In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519, 526.)¿

 

Timing of Motion

 

            A motion for new trial must be served and filed either “(1) After the decision is rendered and before the entry of judgment” or “(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (Code Civ Proc. § 659.) However, the Court’s authority to rule on a motion for new trial expires “75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial.” (Code Civ. Proc. § 660.)

 

            For the same reasons discussed above with respect to the JNOV motion, the Court has the authority to rule on the pending motion at the hearing on May 3, 2023 or at any time on or before May 24, 2023. 

 

Analysis

 

            In her motion for new trial, Brennan raises three challenges to the verdict that are grounded on her contention that Plaintiff was required to prove Sandy McClintock’s incapacity and failed to do so.  Thus, Brennan argues that the weight of the evidence is against a finding of incapacity, that the Court should have instructed the jury on Plaintiff’s duty to prove incapacity, and that it was error to instruct on the statutory presumption because of §21392.  These attacks on the verdict are rejected for the reasons explained above with respect to the Court’s denial of the JNOV motion.

 

            Brennan also argues she was prejudiced by the inclusion of the conclusive presumption claim asserted by Plaintiff under Probate Code § 21380 because it was not alleged in the operative complaint and not raised until Plaintiff’s trial brief was filed on July 6, 2022. Brennan contends that this issue constituted prejudicial surprise within the meaning of Code of Civil Procedure section 657(3). “‘Surprise’ as a ground for a new trial denotes some condition or a situation in which a party to an action is unexpectedly placed to his detriment. The condition or situation must have been such that ordinary prudence on the part of the person claiming surprise could not have guarded against and prevented it. Such party must not have been negligent in the circumstances.” (Wade v. DeBernardi (1970) 4 Cal.App.3d 967, 971.)

 

            The Court is not persuaded by Brennan’s contention that she suffered prejudicial surprise. As our Court of Appeal has held, prejudicial surprise does not arise when a new legal issue is raised, even after trial, if that issue does not call for the production of any evidence, and the party claiming surprise had an opportunity to respond. (Subriar v. City of Bakersfield (1976) 59 Cal.App.3d 175, 212-13.) Here, the issue was first raised in Plaintiff’s trial brief on July 6, 2022, before the commencement of trial, providing Brennan with an opportunity to file a responsive brief or to otherwise raise legal counterarguments at trial. Further, Plaintiff’s Probate Code argument did not require further production of evidence, instead merely contending that the law, when applied to the undisputed facts that Brennan drafted the beneficiary designations, conclusively presumes undue influence.

 

            Brennan also contends that any damages are excessive on the first theory of liability because the jury found, on the second theory of liability, that she rebutted the presumption of undue influence and that her conduct did not cause damage to Plaintiff.  The former argument is unavailable on a claim based on the conclusive statutory presumption applied to instruments benefitting the drafter. As for the latter argument, an order for a new trial on the basis of excessive damages is “necessarily granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded.” (Pierce v. Nash (1954) 126 Cal.App.2d 606, 622.) “A new trial shall not be granted upon the ground of … excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc. § 657 [emphasis added].) “The judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record [that] the jury verdict was improper.” (Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 406.)

 

            In ruling on the sufficiency of the evidence, if a verdict finding liability on one cause of action is properly supported by the evidence, no basis for a new trial exists, even if the evidence does not support a finding of liability on the remaining causes of action. (Spigelman v. Eastman (1928) 95 Cal.App. 205, 217.) Similarly, where there are several defenses to an action, any one of which would be sufficient to defeat the action, a verdict for the defendant cannot be set aside if the evidence supports any one of those defenses. (Kidd. v. Laird (1860) 15 Cal. 161.)

 

            Here, Brennan’s argument is unpersuasive in the face of the uncontroverted evidence and well-settled authority on the proper basis for a new trial. Evidence of whether Plaintiff was actually harmed is only relevant to the determination of liability under the care custodian theory, where the presumption of undue influence could be rebutted. (See Prob. Code § 21380(a)(3).) In contrast, under the conclusive statutory presumption applicable to subdivision (a)(1), a donative transfer to the person who drafted the instrument is deemed to be secured by undue influence as a matter of law and the instrument is invalidated as a result. (Id., subdivision (c); § 21386.) Thus, the jury’s determination of whether actual harm was done is immaterial, as, under the statutory presumption, Brennan is liable as the drafter of the transfer. To conclude otherwise would effectively invalidate subdivision (c), which is contrary to principles of statutory interpretation. (Civ. Code § 3541.) By contrast, exclusion of a requirement that the evidence show harm to prevail under subdivision (c) harmonizes with other forfeiture statutes intended to deter elder abuse. (See, e.g, Estate of Lowrie (2004) 118 Cal.App.4th 220, 229 [concerning Probate Code section 259].)  As the conclusive statutory presumption theory is an independent basis for the award, any deficiency as to evidence in support of the care custodian theory is not sufficient to justify an order of a new trial.

 

Conclusion

 

            Accordingly, the alternative Motion for a New Trial is DENIED.

 

CONCLUSION:

 

            For all the reasons explained above, Defendant Brennan’s motion for judgment notwithstanding the verdict is DENIED.

 

            Defendant’s alternative motion for new trial is DENIED.

 

            Moving Party is ordered to give notice.

 

IT IS SO ORDERED.

 

Dated:  May 3, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.