California Court of Appeal Apr 17, 2025 No. E081697MUnpublished
Filed 4/17/25 Henry v. Aleksic CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KIMBERLY HENRY, E081697 Plaintiff and Appellant, (Super.Ct.No. RIC1906267) v. ORDER MODIFYING OPINION SAM ALEKSIC, as Trustee, etc., et al., AND DENYING PETITION FOR REHEARING Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT
The petition for rehearing is denied.
On our own motion, the Court ORDERS the opinion filed on April 2, 2025 modified as follows:
On the last page of the opinion, page 18, in the first sentence of the last paragraph above the disposition, replace the word “or” in the phrase “undue influence or lack of capacity” with a comma, and add the phrase “, or unauthorized practice of law” to the end of that sentence, so that it reads: Finally, we reject Kimberly’s attempt to argue that the 2018 trust amendment was the product of undue influence, lack of capacity, or unauthorized practice of law.
1
The modification does not change the judgment.
MENETREZ
J. We concur:
MILLER Acting P. J.
FIELDS J.
2
Filed 4/2/25 Henry v. Aleksic CA4/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from the Superior Court of Riverside County. Carol A. Green, Judge.
Affirmed.
Johnson & Shinton and Thomas E. Shinton for Plaintiff and Appellant.
Stream Kim Hicks Wrage & Alfaro, Eugene Kim, and Elizabeth V. Duran for
Defendants and Respondents.
Kimberly Henry filed this lawsuit against her father, Jerry Henry, after learning
that he amended the terms of his trust to disinherit her and make his grandson (her son)
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the sole beneficiary of his estate.1 Kimberly asserted a claim for promissory estoppel,
alleging that Jerry breached an oral promise to leave everything to her if she would take
care of him and his wife, Denise Henry (Kimberly’s mother), after Denise’s cancer
diagnosis. Shortly after filing a demurrer in this action, Jerry passed away and Kimberly
amended her complaint to name his estate, his trustee, and her son as defendants.
Following trial, at which Kimberly and other members of the Henry family testified, the
trial court entered judgment in favor of defendants, concluding that Kimberly was not a
credible witness and failed to prove the existence of the alleged oral promise. Kimberly
appeals from the judgment, and we affirm.
BACKGROUND
I. Jerry’s trust and Kimberly’s lawsuit
Jerry and Denise were married for 40 years and had three children together—
Kimberly, Stacy, and Brian. In 1999, Jerry created a revocable living trust, which named
Kimberly and Stacy as beneficiaries and expressly excluded Brian.2 Jerry amended his
trust in 2001 and 2007 to change the successor trustee.
In the summer of 2010, Stacy and Denise had an argument, and Stacy moved out
of her parents’ home. Stacy saw her parents briefly in November 2010 but remained
estranged from them for the rest of their lives.
1 Because some of the parties in this case have the same last name, we refer to them by their first names to avoid confusion. No disrespect is intended. 2 Denise created a trust the same year, but her trust is not at issue in this case. 2
On December 1, 2010, Jerry executed a “short form” amendment to his trust. The
short form lists Kimberly as the successor trustee but does not identify the beneficiaries
of the trust. The corresponding “long form” amendment to Jerry’s trust made Kimberly
the sole beneficiary and expressly excluded Stacy. However, it is unknown whether Jerry
ever executed that document, because the parties could not locate a signed copy of it.
Rodwin Wong, an attorney based in Hawaii (where Jerry and Denise owned property)
drafted the long form and short form amendments, as well as the preceding trust
documents.
In late 2010, Denise was diagnosed with cancer. Kimberly and her son, Dylan
Heredia-Tamayo, were living with Jerry and Denise at the time, and Kimberly began
providing Denise’s in-home care. In 2015, Jerry retired and began to share equally in
Denise’s care. In June 2015, Kimberly met Craig Wilhite, and in August 2017, Craig and
his two sons moved into Jerry and Denise’s home.
In February 2018, Jerry asked his tax preparer, Sam Aleksic, to draft an
amendment to his trust. The amended trust, which was executed on February 16, 2018,
names Dylan the sole beneficiary, appoints Aleksic the trustee, and states that Jerry “has
intentionally left nothing to” Kimberly, Stacy, Brian, Craig, and Craig’s sons.
In June 2018, Kimberly and Craig were married in Las Vegas. In July 2018, Jerry
and Denise served Kimberly and Craig with an eviction notice, and Denise filed requests
for domestic violence restraining orders against Kimberly and Craig. In her declaration
supporting her requests, Denise stated that Kimberly and Craig verbally and emotionally
abused her and Jerry “on a daily basis” and that she and Jerry felt like “prisoners in
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[their] own home” because of the “constant yelling and bantering about our financial
status and how they believe it belongs to them.” Denise said that she was in “constant[]”
fear of Kimberly and Craig and had called the police on them twice already.
Before the hearing on Denise’s requests, Craig agreed to sign a stay-away order.
At the hearing, Denise testified: “The whole thing about my daughter and her husband is
money. They think they are entitled to my entire estate. They don’t know who it is for,
but they think they know. And that’s when it started getting really bad is when they
thought the trust was going elsewhere. And that no matter what I did, it was not right. . . .
[And] I took away my daughter’s inheritance. You don’t treat people like they’re garbage
and expect money. And that’s the entire problem with my daughter. It’s money.” At the
close of evidence, the court denied the request on the ground that Denise “failed to prove
by a preponderance of the evidence a history of domestic violence sufficient for . . . a
permanent restraining order.”
On April 29, 2019, Denise passed away. In September 2019, Kimberly filed a
petition to appoint a conservator for Jerry. The court-appointed psychologist who
evaluated Jerry to assess his mental capacity concluded that Jerry did not need a
conservator. During an interview with the probate investigator, Jerry stated that he had
“written [Kimberly] out of his trust” and that she “wants her fair share of the pie, which
she is not getting.”
A few months later, in December 2019, Kimberly filed this lawsuit, asserting
claims against her father for promissory estoppel, unjust enrichment, quantum meruit,
breach of quasi-contract, and intentional or negligent infliction of emotional distress. In
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her verified complaint, Kimberly alleged that “[s]ince approximately December of 2001,
[Jerry] and his late wife promised [her] that if she provided for them, ensured they had
their medicine, took [Jerry’s] wife to the doctors, cooked for them, cleaned for them, paid
their bills, and was there for their every beckon-call [sic], that [she] would receive
everything from their Will, their property, all assets, homes, etc.” Kimberly alleged that
Jerry breached that promise by amending his trust to make Dylan the sole beneficiary.
In March 2020, the probate court dismissed Kimberly’s conservatorship petition.
On May 7, 2020, while his demurrer to Kimberly’s complaint in this case was
pending, Jerry passed away. Following his death, Kimberly filed a verified first amended
complaint against Jerry’s estate and Dylan, asserting the same claims as in her original
complaint. In November 2021, Kimberly filed a verified second amended complaint that
added Aleksic as a defendant, eliminated the infliction of emotional distress claim, and
added claims for fraud and malicious prosecution. Because this appeal challenges only
the court’s ruling on the promissory estoppel claim, we limit our discussion of the trial
evidence to that claim.
II. Trial evidence
A. Kimberly’s testimony
At trial, Kimberly testified that in December 2010, after Denise was diagnosed
with cancer, Jerry promised his estate to Kimberly if she would take care of him and
Denise. Kimberly said that she agreed to the arrangement and that Jerry memorialized
the promise by amending his trust in 2010 to make her the sole beneficiary. Although a
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signed version of the 2010 amendment could not be found, Kimberly testified that she
saw her father sign the document at a UPS store on December 1, 2010.
Kimberly said that she was forced to put her life on hold and give up pursuing
work outside the home in order to take care of Denise while Jerry was working full time.
She testified: “I was told if I took care of them, they would take care of me, and
everything would be mine. And then with the 2010 document, that reassured me and
made me feel comfortable that, you know, okay. I’m just going to take care of my mom
and not worry about me, you know, because they promised to take care of me in the end.”
Kimberly had worked a few jobs in the past but had never been steadily employed.
However, Kimberly claimed that she gave up her goal of “pursuing a job in preschool” to
care for Denise, because right after her mother was diagnosed with cancer and right
before she agreed to Jerry’s proposal, she had “just received my certified assistant
preschool teacher’s aid certification.”
To prove that she provided fulltime care to Denise, Kimberly introduced several
videos that she had recorded with her phone. The videos depict Kimberly arguing with
Denise, who is emaciated—Kimberly testified that Denise then weighed approximately
68 pounds—and visibly distressed, often to the point of wailing. In one of the videos,
Kimberly follows Denise as she walks through the house looking for her pants, and
Kimberly says to the camera, “Ladies and gentlemen, this is the reason she ends up back
in the hospital two days later after she’s home, just so we can all be clear on this, because
the insurance is questioning it now mom and they’re saying that dad, that you don’t have
any more benefits, so dad has to start paying cash for your stays. . . . [¶] . . . You guys
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have chances of getting your homes all taken away, ’cause you don’t have insurance to
pay for your stays.” Denise pleads with Kimberly to leave her alone and tells her, “You
are getting me extremely upset. . . . You yell at me. You scream at me.”
In another video, Jerry is arguing with Denise because Denise does not want
Kimberly to give her medicine, and Jerry says, “Stacy left. You got sick. . . . Stacy’s
outta the picture . . . but at least Kimberly’s here trying to help you, help me but that’s not
good enough for you.” In yet another video, Craig and Kimberly are arguing with Jerry
and Denise, and Craig tells Denise, “[W]hen we leave, you might as well kill yourself,
because you will die. . . . Sitting in a hot, miserable room that’s filthy. And yesterday that
was full of black piss . . . it was that bad. We got pictures of it.”
On cross-examination, defense counsel asked Kimberly why she testified that
Jerry made the promise to her in 2010 when her verified complaint alleged that he made
the promise in 2001. Kimberly responded that 2001 was “when I was told that my sister
and I would inherit my parents’ belongings.” Kimberly explained that Jerry’s estate was
“supposed to go to [Stacy] as well,” but “[Stacy] left and I stayed, so that’s when it got
changed because she left.” Kimberly claimed that her parents disinherited Stacy because
Stacy refused to believe that Denise had been diagnosed with cancer.
Defense counsel also asked Kimberly about a trustee’s deed to a property that
Jerry and Denise owned in Hawaii. Shown the deed, Kimberly acknowledged that it was
recorded on June 22, 2021, and that it purported to transfer title to the property to
“Kimberly Michelle Wilhite” on December 1, 2010. Kimberly said that Wong, her
parents’ probate attorney, had prepared the deed during their trip to Hawaii in late 2010, 7
that her parents gave her a copy of the deed when they returned from the trip sometime in
late 2010 or early 2011, and that she had kept it under her mattress since then. Asked
why her last name was listed as “Wilhite” in a document that predated her meeting Craig
by several years, Kimberly replied, “That’s a little weird,” and then claimed to have
trouble remembering when she received the deed or which attorney had prepared it. At
one point, Kimberly “wonder[ed]” out loud whether Wong “rewrote” the deed for her
after Jerry died, and the trial court told her, “Please don’t speculate.”
Regarding her work history, Kimberly acknowledged that from 2009 to the present
she was not employed, with the exception of a brief stint working as a chef at a casino
from sometime in 2019 to February 2020.
B. Wong’s testimony
Wong testified that he drafted the original version of Jerry’s trust in 1999 and also
drafted all of the amendments to the trust except for the final amendment in 2018. His
typical practice was to create the trust agreement (also referred to as the “long form”
agreement), as well as a “short form” agreement, which contains a brief summary of the
trust and is designed to “notify people that a trust exists.” Regarding the trust documents
he drafted for Jerry in 2010, Wong said that “[t]he one thing [Jerry and Denise] wanted to
do is make sure that Kimberly was the one that was going to take over after they died.”
Agreeing that an unsigned trust document is not effective, Wong said that he remembered
that Jerry had signed the short form amendment—which listed Kimberly as the trustee—
but he could not recall whether Jerry signed the long form amendment. Asked about the
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2010 trustee’s deed that Kimberly claimed he had drafted, Wong said that he did not
recognize the document.
C. Stacy’s testimony
Stacy testified that her falling out with her parents had to do with their feelings
about her fiancé and had nothing to do with Denise’s cancer diagnosis. She stopped
seeing her parents before the diagnosis, and she did not learn that Denise had cancer until
after she died. Her parents never told her that they were going to disinherit her, but she
assumed that they would because of the estrangement.
D. Dylan’s testimony
Dylan testified that he was very close to his grandfather, because his biological
father had left when he was young and Jerry had been like a “father figure” to him. He
said that Jerry and Denise had always let Kimberly live with them rent and expense free
and that “whenever my mother got married, she would move in whoever she got married,
and my grandparents usually ended up supporting them as well.”
Dylan lived with his grandparents until June 2018, when Kimberly took Craig’s
side after an argument with Dylan, accused him of stealing her inheritance, and arranged
for him to live with his biological father in Riverside. After the move, Kimberly
prohibited Dylan from visiting his grandparents at their home in Nuevo, California, but
Jerry and Denise would regularly drive to Riverside to visit him. After Kimberly and
Craig moved out of Jerry and Denise’s house in August 2018, Dylan began staying with
his grandparents half of the time. With Kimberly and Craig gone, “it was a lot more
calm[],” and Jerry and Denise were “happy.”
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After Denise passed away, Dylan got permission from his father to move in with
Jerry full time so that Jerry did not have to live alone. After the move, Kimberly
constantly reminded Dylan that she had custody of him and “would threaten to have the
cops take me out of my grandparents’ house in handcuffs or have me removed.” Dylan
was living with Jerry when Kimberly filed the petition to appoint a conservator for Jerry
and when she initiated this lawsuit. Jerry told Dylan that he had never promised
Kimberly his estate and that he was “devastated” that she had resorted to litigation.
E. Aleksic’s testimony
Aleksic testified that he had been Jerry’s tax preparer since 2010. In February
2018, Jerry asked him to prepare an amendment to his trust that would make Dylan the
sole beneficiary and Aleksic the successor trustee. Asked what prompted the amendment,
Aleksic said that Jerry and Denise told him that “they were unhappy with Kimberly and
with Craig, and that there was just a lot of tension in the home, and they did not like the
behavior of Kimberly and Craig in their home.” They also told him that the only reason
that they were tolerating Kimberly and Craig in their home was “so that they could keep
Dylan in close proximity to them because they loved him.”
F. Craig’s testimony
Craig testified that he heard Jerry and Denise promise Kimberly their estate “more
than a dozen” times. The first time he heard about the promise was at a family barbeque
on July 4, 2015, about 10 days after he started dating Kimberly. According to Craig,
Jerry said that “[e]verything he owned” was going “to Kimberly because she’s taking
care of his wife.” Craig had no idea how many assets Jerry and Denise owned until
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“Denise started talking, and she had diarrhea of the mouth, and let it all out—the Hawaii
house, the million-dollar IRA account that I seen with my own eyes, the Burbank house
that was sold. Everything.”
Craig acknowledged that he never paid rent while he and his children lived with
Jerry and Denise. Asked to describe the type of care Kimberly provided for her parents,
Craig said that “she would make breakfast, a large breakfast for everybody to, say, get
some food. She would clean the house. She would get her mother medicine. She would
get her father hopefully to take a shower because he was not showering. Stuff like that,
to where the household would be more normal, if you will.”
On cross-examination, Craig said that the only reason he stipulated to a stay-away
order was to “keep my gun rights.” Asked why his mother had called Wong after Jerry
died, Craig replied, “Because Kimberly was very upset and distraught because her father
promised her for so many years and ended up . . . reneging on his promise and gave it to
someone who did absolutely nothing for that family.”
III. The Court’s Ruling
In a written statement of decision, the trial court ruled against Kimberly on each of
her claims. As to the promissory estoppel claim, the court concluded that it failed for the
following reasons.
First, the court found that there was “no credible evidence that Jerry or Denise
promised Kimberly that she would be the sole beneficiary of their trusts if she took care
of them.” The court found that Kimberly was an unreliable witness and that her
“testimony about the promises Jerry allegedly made to her about his estate and the trust
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were not credible.” The court stated that Kimberly “contradicted herself on numerous
occasions and would routinely change her testimony to suit the pending question.” The
court also found that she “blatantly lied” when testifying about the trustee’s deed to the
Hawaii property: “Kimberly testified that Jerry gave her that trustee’s deed in December
2010 or January 2011 as proof of Jerry’s promise that Kimberly was the sole beneficiary
and sole successor trustee to the Jerry Trust. . . . [But] it would have been impossible for
Jerry to give Kimberly a trustee’s deed in 2010 that referenced Kimberly as Kimberly
‘Wilhite’ when she did not even meet Craig until four or five years in the future. . . .
Kimberly could not provide any explanation as to who prepared [the deed] or how it was
prepared. There is no evidence to suggest that Jerry or Denise authorized the preparation
of this trustee’s deed. . . . It should also be noted that Rodwin Wong, who prepared all of
the other recorded documents for the Hawaii property, testified that he did not prepare
this trustee’s deed. Thus, it appears as though Kimberly unilaterally recorded this
trustee’s deed . . . without Jerry or Denise’s consent, without the assistance of an attorney,
and without any authority as a trustee.” Based on that adverse credibility determination,
the court concluded that Kimberly failed to prove the existence of an oral promise by
clear and convincing evidence, as required by Probate Code section 21700, subdivision
(a)(4).
Second, the court concluded that even if Kimberly had proved the existence of the
alleged oral promise, promissory estoppel requires the promisee to perform in “good
faith,” and the videos Kimberly introduced into evidence, along with the records from the
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domestic violence restraining order case, “show that Kimberly abused and mistreated
Denise and Jerry.”
Third, the court concluded that Kimberly failed to prove that she relied on the
alleged oral promise to her detriment. The court stated that it did not believe Kimberly’s
testimony that she was unable to pursue a career from 2010 to 2015 because of caretaking
responsibilities, and the court instead found “that Kimberly did not want to work; it had
nothing to do with taking care of Denise.”
The court entered judgment in favor of defendants on all of Kimberly’s claims,
and Kimberly appealed.
DISCUSSION
Kimberly raises several challenges to the trial court’s ruling on her promissory
estoppel claim. Each of them lacks merit.
First, Kimberly argues that reversal is required because the record contains
substantial evidence to support her promissory estoppel claim. To demonstrate her point,
she identifies the evidence from trial that she believes “clearly show[s] that a promise
was made and [that she] relied upon that promise.” Kimberly misunderstands the
applicable standard of review on appeal.
As the plaintiff, Kimberly bore the burden of proving the existence of the alleged
oral promise by clear and convincing evidence. (Evid. Code, § 500; Prob. Code,
§ 21700, subd. (a)(4).) The trial court concluded that Kimberly failed to carry that
burden. Specifically, the court found Kimberly to be an unreliable witness, did not
believe her testimony that Jerry promised her his estate in exchange for her caretaking
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services, and concluded that there was “no [other] credible evidence” that Jerry made
such a promise.
“[W]here the issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, italics
added, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.)
Thus, in order to prevail on appeal, Kimberly must demonstrate that the evidence
supporting her promissory estoppel claim was “uncontradicted and unimpeached” and “of
such a character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding” in her favor. (Roesch v. De Mota (1944) 24 Cal.2d 563,
570-571.) Kimberly does not make that showing, nor can she. The only evidence of the
alleged oral promise came from testimony that the trial court did not find credible, and
we do not reevaluate credibility on appeal. (People v. Guerra (2006) 37 Cal.4th 1067,
1129 [“We do not reweigh evidence or reevaluate a witness’s credibility”]; People v.
Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact”].)
Kimberly argues that the 2010 amendment to Jerry’s trust is proof of an oral
promise, but there is no evidence that Jerry ever signed the long form version of that
amendment. That is the only version that lists Kimberly as the sole beneficiary. And in
any event, the unsigned long form version does not mention a promise. Rather, it merely
names Kimberly as the sole beneficiary, which is not the same thing as promising to give
her the entire estate in exchange for services rendered.
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For all of these reasons, the evidence in support of the promissory estoppel claim
was not uncontradicted, unimpeached, and of such a character and weight as to compel a
finding that Jerry promised to leave his estate to Kimberly if she took care of him and
Denise. Kimberly’s argument therefore fails.
Second, Kimberly challenges the trial court’s finding that she performed her
caretaking responsibilities in bad faith because she “abused and mistreated Denise and
Jerry.” She argues that the court’s “finding of abuse” exceeded the court’s “subject
matter jurisdiction” and “violated principles of res judicata and issue preclusion,” because
the commissioner who denied Denise’s request for a permanent domestic violence
restraining order had already determined “that no abuse occurred.” According to
Kimberly, the trial court “had no formal training to determine what abuse is” and “should
have known [that it] was bound by [the commissioner’s] determination of fact.” The
argument lacks merit.
As an initial matter, because this case does not involve the same parties or issues
as the domestic violence restraining order case, neither res judicata nor collateral estoppel
applies to the trial court’s ruling. (See generally Gottlieb v. Kest (2006) 141 Cal.App.4th
110, 147 [discussing the requirements of both doctrines].) But even if we assume for the
sake of argument that the court erred by finding that Kimberly performed her caretaking
responsibilities in bad faith, her argument would still fail, because the court concluded
that her claim failed for the additional, independent reason that she did not prove the
existence of the alleged oral promise. “Even when error is demonstrated, the judgment
will not be reversed unless it is ‘reasonably probable that a result more favorable to the
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appealing party would have been reached in the absence of the error.’” (Ribakoff v. City
of Long Beach (2018) 27 Cal.App.5th 150, 162; see Cal. Const., art. VI, § 13.) Because
Kimberly has not shown any error in the court’s alternate ground for ruling against her,
she cannot demonstrate that she was prejudiced by any error in the court’s finding that
she abused and mistreated her parents. (See In re Marriage of McLaughlin (2000) 82
Cal.App.4th 327, 337 [appellant bears the burden of showing prejudice, and “[i]njury is
not presumed from error”]); Christoff v. Union Pacific Railroad Co. (2005) 134
Cal.App.4th 118, 125-126 [affirming the judgment where the appellant failed to
demonstrate that the alternate ground for the court’s ruling was erroneous].)
Third, Kimberly argues that the trial court applied the wrong legal standard when
concluding that she failed to prove detrimental reliance. She contends that the court
incorrectly believed that the law requires proof that she gave up a job to care for Denise,
whereas all the law requires is that she changed her course of action. To support her
argument, Kimberly summarizes the facts of several published cases in which the
plaintiffs proved detrimental reliance by showing that they changed their course of action,
and she asserts that her evidence was at least as strong as the evidence in those cases.
The argument fails for the same reason as her previous argument: Even if Kimberly
could demonstrate error in the court’s conclusion regarding detrimental reliance, she
would not be able to demonstrate prejudice, because the court also concluded that she
failed to prove another element of the claim—the existence of a promise. (Garcia v.
World Savings, FSV (2010) 183 Cal.App.4th 1031, 1044.) In addition, Kimberly’s
argument is based on a mischaracterization of the court’s ruling. The court did not reject
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Kimberly’s claim of detrimental reliance on the ground that Kimberly’s testimony was
credible but failed to meet a particular legal standard. Rather, the court rejected the claim
of detrimental reliance because the court found that Kimberly’s testimony was not
credible. Kimberly’s argument concerning the proper legal standard for detrimental
reliance thus fails to show that the court erred.
Fourth, Kimberly argues that the trial court abused its discretion by basing its
ruling on two documents that were not in the record. The first document is the trustee’s
deed for the Hawaii property, which was identified as Exhibit 33 and was discussed
during Kimberly’s and Wong’s testimony but was never admitted into evidence.
Kimberly contends that the court improperly relied on the deed to conclude that she
“blatantly lied” about the circumstances under which she received it. We disagree. The
court did not need to rely on the deed itself, because the court could make its adverse
credulity determination solely on the basis of Kimberly’s and Wong’s testimony about the
deed. Wong testified that he did not recognize the deed, and Kimberly acknowledged
that the deed was dated December 1, 2010, and that the deed listed her last name as
“Wilhite” even though she did not meet Craig until 2015. That testimony alone was more
than sufficient to support the court’s determination that Kimberly was not testifying
truthfully when she said that Wong drafted the document for her parents in 2010.
Kimberly also claims that the court’s tentative ruling improperly relied on a
“declaration from Jerry” that does not appear in the record. Again, we disagree. In its
tentative ruling, as part of its observation that Kimberly had not cared for her parents “in
good faith,” the court stated that it recalled “seeing something” that Jerry had submitted
17
in the case, possibly a “declaration,” indicating that he and Denise “felt like prisoners in
their own house.” The quote about feeling like “prisoners in their own house” comes
from Denise’s declaration in support of her request for a domestic violence restraining
order, which was admitted at trial. Thus, the court was not relying on extra-record
evidence but merely misspoke.
Finally, we reject Kimberly’s attempt to argue that the 2018 trust amendment was
the product of undue influence or lack of capacity. Before trial, the parties stipulated that
any challenges to the validity of the trust were not at issue in this case and were reserved
for the proceedings before the probate court.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
FIELDS J.
18
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment against the plaintiff, holding that she failed to prove the existence of an oral promise to inherit the estate by clear and convincing evidence and failed to demonstrate that the trial court's adverse credibility findings were erroneous.
Issues
Whether the trial court erred in finding that the plaintiff failed to prove the existence of an oral promise by clear and convincing evidence.
Whether the trial court's findings regarding the plaintiff's abuse of the decedents were barred by res judicata or issue preclusion.
Whether the trial court's credibility determinations regarding the plaintiff's testimony were supported by the record.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Finally, we reject Kimberly’s attempt to argue that the 2018 trust amendment was the product of undue influence, lack of capacity, or unauthorized practice of law.”