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Filed 3/15/24 Estate of Delauter CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Estate of Carole L. Delauter, 

Deceased.

THOMAS DELAUTER,

Plaintiff and Respondent,

v.

CHRISTOPHER PATRICK 

MALOHN DELAUTER,

Objector and Appellant.

 A163634

 (Contra Costa County

 Super. Ct. No. MSP19-00811)

In this probate proceeding, Christopher Patrick Malohn Delauter (Son) 

appeals following the trial court’s judgment on his stepfather’s spousal 

property petition and petition to probate the will of Son’s mother. We affirm.

BACKGROUND

Decedent Carole L. Delauter1 died on December 13, 2016. In June 

2019, her surviving husband, respondent Thomas Delauter (Husband), filed a 

petition to probate Carole’s will dated December 10, 2016 (First Will). In the 

1 To avoid confusion, we refer to the decedent by her first name. No 

disrespect is intended.
2

First Will, Carole left “all my worldly possessions to my Husband & my 

youngest son,” and named Husband as the executor. Husband also filed a 

spousal property petition, seeking a community property interest in certain 

real property (the Property). 

In October 2019, Son, who is Carole’s youngest son from a prior 

marriage, filed a will contest on the ground that Carole executed a 

subsequent will on December 12, 2016 (Second Will), which left all her 

possessions to Son and named him executor.

2 In December, Son filed an 

opposition to Husband’s spousal property petition, arguing the Property was 

Carole’s separate property, titled solely in her name and purchased before 

her marriage to Husband. 

Over multiple days in January and February of 2021, the trial court 

held a consolidated trial on Son’s will contest and Husband’s spousal property 

petition. 

In July 2021, the court issued a statement of decision. As to the will 

contest, the court found the First Will was executed in the presence of 

Husband and Son while Carole was hospitalized with throat cancer, after her 

substantial pain medications had been reduced to allow her to coherently 

discuss her treatment plan with her doctors. The Second Will was executed

two days later while only Son was present, after Son prompted Husband and 

Carole’s granddaughter to leave the hospital, and there was no evidence her 

pain medication had been reduced. The court found the Second Will was the 

product of undue influence and invalidated it; found the First Will valid; and 

ordered the estate distributed according to the terms of the First Will. 

2 Son also filed a petition to probate the Second Will. This petition was 

dismissed without prejudice. Son did not appeal this dismissal or file a new 

petition.
3

As to Husband’s spousal property petition, the court found that, 

although title to the Property was in Carole’s name and she purchased it 

before her marriage to Husband, she did not accrue significant equity before 

the marriage and community property paid for the entire mortgage as well as 

capital improvements made during the marriage. The court found Husband 

therefore held a 50 percent interest in the Property, and the First Will 

distributed Carole’s 50 percent interest in the Property, and the court 

accordingly distributed the Property 75 percent to Husband and 25 percent to 

Son. Judgment subsequently issued.

DISCUSSION

I. Pretrial Order

Son first challenges a January 2021 minute order, issued before trial 

began, granting Husband’s petition for probate of the First Will and 

appointing Husband as executor. Son argues it was error for the trial court 

to issue the order before trial on his will contest.

As an initial matter, Son fails to demonstrate prejudice from any error. 

Trial began shortly after the January 2021 minute order issued and Son was 

not denied an evidentiary hearing on his will contest.3

In any event, as Husband argues, the January 2021 order was 

separately appealable. (Prob. Code,4 § 1303, subds. (a)–(b) [order “[g]ranting 

. . . letters to a personal representative” or “[a]dmitting a will to probate” is 

appealable].) “ ‘The orders listed as appealable in the Probate Code must be 

3 We reject Son’s suggestion that the outcome of trial was 

predetermined by the January 2021 minute order. The trial court’s detailed 

factual findings indicate its careful consideration of the evidence presented at 

trial.

4 All undesignated statutory references are to the Probate Code.
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challenged timely or they become final and binding.’ ” (Estate of Reed (2017) 

16 Cal.App.5th 1122, 1127.) Son did not timely appeal from this order and 

therefore may not challenge it now.

II. Undue Influence Finding

Son argues the trial court erroneously found a presumption of undue 

influence applied to the Second Will. We reject the challenge.

In finding the Second Will to be the product of undue influence, the 

trial court reasoned, “a contesting party can claim a presumption of undue 

influence where there is (1) [a] confidential relationship between the decedent 

and the alleged undue influencer, (2) the alleged undue influencer was active 

in the procurement or execution of the Will, and (3) the alleged undue 

influencer unduly benefits from the Will.” 

The court cited section 21380 for this proposition. Section 21380, 

subdivision (a), sets forth a different test for finding a presumption of undue 

influence. (§ 21380, subd. (a) [presumption of undue influence where 

donative transfer made to certain enumerated persons, including “The person 

who drafted the instrument” and “A person who transcribed the instrument 

. . . and who was in a fiduciary relationship with the transferor when the 

instrument was transcribed”].) Son argues, and Husband properly agrees, 

that the section 21380 presumption does not apply here. (See § 21382 [with 

exceptions not relevant here, § 21380 does not apply to “a donative transfer to 

a person who is related by blood or affinity, within the fourth degree, to the 

transferor”].)

However, the factors identified by the trial court state the common law 

test for a presumption of undue influence. (Estate of Sarabia (1990) 221 

Cal.App.3d 599, 605 [“The presumption of undue influence arises only if all of 

the following elements are shown: (1) the existence of a confidential 
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relationship between the testator and the person alleged to have exerted 

undue influence; (2) active participation by such person in the actual 

preparation or execution of the will, such conduct not being of a merely 

incidental nature; and (3) undue profit accruing to that person by virtue of 

the will.”]; Keading v. Keading (2021) 60 Cal.App.5th 1115, 1127 [“Sarabia

describes the common law test for undue influence, and . . . addresses when a 

presumption of undue influence arises.”].) That the court cited the wrong 

authority for this presumption is immaterial. (See Young v. Fish & Game 

Com. (2018) 24 Cal.App.5th 1178, 1192–1193 [“if a judgment is correct on any 

theory, the appellate court will affirm it regardless of the trial court’s 

reasoning”].)5

5 For the first time in his reply brief, Son challenges the court’s finding 

that the three prongs of the common law test were met. Arguments made for 

the first time in a reply brief are forfeited. (Tellez v. Rich Voss Trucking, Inc. 

(2015) 240 Cal.App.4th 1052, 1066 (Tellez).) In any event, the challenge is 

unavailing. Son does not dispute he had a confidential relationship with 

Carole, but simply asserts, with no citation to authority, that this “should not 

be held against him.” Son argues the trial court’s finding that he was an 

active participant lacks substantial evidence, complaining primarily that the 

court erroneously excluded from evidence handwritten notes written by 

Carole during her hospitalization. Assuming this exclusion was in error, Son 

fails to demonstrate prejudice. As the court noted when excluding the notes, 

it had before it “a great deal of testimony” as to the content of the notes, 

which had been admitted without objection. Further, most of the pages Son 

characterizes as conclusive were undated, and therefore were not conclusively 

written on the day the Second Will was executed. Son argues the testimony 

of Carole’s granddaughter about who told her she could leave the hospital the 

night the Second Will was executed was equivocal, but the granddaughter

testified, “My uncle Chris [Son] assured me that it was okay [to leave the 

hospital]. He would take care of my grandmother, and I could go take a 

break.” Finally, with respect to the court’s finding that Son unduly 

benefitted from the Second Will, Son points to a 2001 will executed by Carole 

and Husband naming Son as their sole beneficiary. Husband testified this 

will was written before he and Carole took a trip to ensure that if they both 
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III. Jurisdiction to Issue July 2021 Statement of Decision 

Son argues the trial court lacked jurisdiction to issue the July 2021 

statement of decision. We disagree.

A. Additional Background

On March 15, 2021, after trial concluded, the court issued a written 

order revoking the Second Will as the product of undue influence, ordering 

the estate distributed in accordance with the First Will, and dismissing 

Husband’s spousal property petition as moot in light of the order validating 

the First Will. The order was entitled, “Judgment of the Court.” 

(Capitalization altered.) Both parties filed requests for a statement of 

decision. 

On April 5, 2021, the court issued an order entitled “Statement of 

Decision.” (Capitalization altered.) Husband subsequently filed a motion to 

modify the statement of decision or for a new trial, arguing the spousal 

property petition was not moot because it would determine how much of the 

Property Carole could convey under the First Will. Son filed objections to 

“the Court’s Proposed Statement of Decision,” and opposed Husband’s motion 

as premature because judgment had not yet been entered. The court 

overruled Son’s objections because the April order “is the final Statement of 

Decision.” 

On July 28, 2021, following a hearing on Husband’s motion, the court 

granted the motion to modify, granted Husband’s spousal property petition, 

and issued a statement of decision titled “Modified Statement of Decision.” 

(Capitalization altered.)

died, their property would pass to Son. The existence of this prior will does

not render the court’s undue benefit finding lacking in substantial evidence.
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B. Analysis

Son argues the trial court lacked jurisdiction to issue the July 28 

statement of decision because it issued more than 75 days after Husband’s 

motion to modify or for a new trial. As Son argues, under Code of Civil

Procedure section 660, subdivision (c), “the power of the court to rule on a 

motion for a new trial shall expire . . . 75 days after the filing of the first 

notice of intention to move for a new trial,” if notice of entry of judgment has 

not been given.

To resolve the challenge, we must first determine the nature of the 

multiple orders issued by the trial court. Although the March 15 order was 

captioned as a judgment, the parties agree it did not constitute the judgment

because they were entitled to request a statement of decision (Code Civ. 

Proc., § 632), which both subsequently did. We agree. The parties also agree

the April 5 order was not the final statement of decision, despite the court’s 

characterization, because the court was required to first issue a proposed 

statement of decision to which they could make objections. (Cal. Rules of 

Court, rule 3.1590(f)–(g).)6 We again agree.

The parties’ dispute centers on the nature of Husband’s motion to 

modify the statement of decision or for a new trial. Son argues the filing of 

the motion triggered the 75-day period in which the court could rule on it 

under Code of Civil Procedure section 660 and, because the July 28 statement 

of decision issued after this time elapsed, the order is invalid. Husband 

6 In Husband’s response brief on appeal, Husband argued that Son’s 

opening brief did not contend the trial court erred in refusing to consider 

Son’s objections to the April 5 proposed statement of decision, and that Son 

therefore forfeited such a claim. In his reply brief, Son did not respond to this 

argument, contend the trial court so erred, or demonstrate he was prejudiced 

by any such error. This issue is therefore not before us.
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argues his motion should instead be construed as objections to the April 5 

proposed statement of decision. 

We agree with Husband. Parties have “statutory rights to object to the 

court’s statement of decision.” (Bay World Trading, Ltd. v. Nebraska Beef, 

Inc. (2002) 101 Cal.App.4th 135, 140.) Thus, “[a] statement of decision issued 

by the court cannot automatically constitute a final decision for purposes of 

entry of judgment . . . because Code of Civil Procedure section 632 and 

California Rules of Court, [former] rule 232 contemplate that a court may 

amend its statement of decision after it receives objections from affected 

parties.” (Id. at p. 141.) Because the April 5 order was a proposed statement 

of decision, Husband was statutorily entitled to file objections. That he 

captioned his objections as a motion to modify or for a new trial is not 

determinative. “The caption, title, or label of a pleading or other document 

does not determine its nature or legal effect. [Citations.] Rather, ‘it is what 

is contained in the [document] itself that is significant.’ ” (Stiger v. Flippin

(2011) 201 Cal.App.4th 646, 654.) Accordingly, Husband’s filing is properly 

characterized as objections to the court’s proposed statement of decision, and 

any statutory time periods associated with new trial motions were not 

triggered. The trial court had jurisdiction to issue the July 28 statement of 

decision.7

7 For the first time in his reply brief, Son argues that even if the Code 

of Civil Procedure section 660 time period was not triggered by Husband’s 

motion, the trial court had to file the judgment within 50 days after issuing 

the tentative decision pursuant to California Rules of Court rule 3.1590(l). 

Son has forfeited this belated argument and in any event provides no 

authority the deadline is jurisdictional; to the contrary, as Son acknowledges, 

the rule provides noncompliance may be excused for good cause. (Id., rule 

3.1590(m).)
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IV. Spousal Property Petition

Son challenges the trial court’s order granting Husband’s spousal 

property petition. We reject the challenge.

The trial court determined that, even though Carole held sole title to 

the Property, “the entire Property was paid for with community property 

wages,” and Husband therefore held a 50 percent interest in the Property 

under the Moore/Marsden rule. “When community property is used to 

reduce the principal balance of a mortgage on one spouse’s separate property, 

the community acquires a pro tanto interest in the property. [Citations.] 

This well-established principle is known as ‘the Moore/Marsden rule.’ ” 

(Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421–1422.) “[T]he rationale of 

the Moore/Marsden rule applies with equal force to capital improvements.” 

(Id. at p. 1423.)

The court made extensive fact-findings on this issue. Carole and her 

prior husband purchased the Property for $6,000 in 1975. In 1978, Carole’s 

prior husband transferred his interest in the Property to Carole and Carole

executed a deed of trust securing a debt to her prior husband of nearly 

$9,000. In 1979, Carole married Husband. Based on these facts, the trial 

court found that “Carole did not accrue significant equity in the Property 

prior to her marriage to [Husband].”8 

8 In his opening brief, Son does not specifically challenge the trial 

court’s finding that Carole did not accrue significant equity before marrying 

Husband, nor does he argue Husband should be allocated a less than 50 

percent share in the Property to reflect any small equity accrued by Carole 

before their marriage. To the extent Son raises any such challenges in his 

reply brief, they are forfeited. (Tellez, supra, 240 Cal.App.4th at p. 1066 [“On 

appeal we need address only the points adequately raised by [appellant] in 

his opening brief on appeal.”].)
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After their marriage, Husband testified that he, Carole, and Carole’s 

prior husband agreed Husband would take over the prior husband’s child 

support obligations to pay off his contributions towards the purchase of the 

Property. Carole’s 1978 debt to her prior husband was paid off in 1986, and 

in the same year Carole took out a new mortgage for nearly $14,000 to make 

improvements on the Property. Both mortgages were paid off with 

Husband’s community property earnings. In 2008, Husband withdrew 

$90,000 from his retirement account to make additional improvements to the 

Property. 

The court found, “[Husband’s] wages paid for an estimated total of 

$22,968.40 of principal mortgage plus the accrued interest and $90,000.00 . . . 

spent towards capital improvements. This home was initially purchased for 

$6,000.00, with a mortgage that exceeded that amount when it was 

quitclaimed to Carole prior to her marriage to [Husband]. Based on these 

significant contributions, even if Carole had any equity in the property prior 

to marriage, under the Moore/Marsden Rule, [Husband] would receive the 

maximum 50% community property interest in the property. Thus, given 

that the entire Property was paid for with community property wages, 

[Husband] is entitled to a pro tanto reimbursement interest in the Property, 

which results in a maximum fifty percent (50%) interest in the Property, as 

the surviving spouse.” 

Son argues there is no competent evidence that community property 

was used to pay the mortgages. The claim fails. Son does not dispute that 

Husband was the primary income earner during the marriage, or that any 

income Carole earned was also community property. The only evidence of 

separate property obtained by Carole during the marriage that Son points to 

is an inheritance Carole received in the 1990s—after the first mortgage was 
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paid off—and which Husband testified Carole spent on a car and other 

personal items but not the mortgage. Ample admissible evidence supports 

the trial court’s finding that the entire purchase price of the house and 

improvements were paid for with community property.

Son’s argument that Husband was at most entitled to reimbursement, 

not transmutation, is also unavailing. The court found under the 

Moore/Marsden rule that the community had acquired an interest in the 

Property; and further found that, under the facts of this case, the interest 

acquired by the community was 100 percent. Substantial evidence supports 

this finding.

V. Judicial Bias

Son argues the trial court was biased against him in violation of his 

constitutional due process rights. As evidence of bias, Son points to rulings 

against him during the proceedings (some we have affirmed and the rest Son 

does not challenge on appeal), rebukes to Son’s counsel during witness 

examination, and purported errors in the court’s factual findings. 

“[T]he due process clause should not be routinely invoked as a ground 

for judicial disqualification. Rather, it is the exceptional case presenting 

extreme facts where a due process violation will be found.” (People v. 

Freeman (2010) 47 Cal.4th 993, 1005.) “Numerous and continuous rulings 

against a party are not grounds for a finding of bias.” (Schmidt v. Superior 

Court (2020) 44 Cal.App.5th 570, 589.) “ ‘[O]ur role . . . is not to determine 

whether the trial judge’s conduct left something to be desired, or even 

whether some comments would have been better left unsaid. Rather, we 

must determine whether the judge’s behavior was so prejudicial that it 

denied [the defendant] a fair, as opposed to a perfect, trial.’ ” (People v. Snow
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(2003) 30 Cal.4th 43, 78.) Son has failed to demonstrate a due process 

violation.9

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on 

appeal.

SIMONS, Acting P.J.

We concur. 

BURNS, J.

CHOU, J. 

(A163634)

9 We therefore need not and do not decide whether the claim is 

forfeited, as Husband contends. Son’s request that the matter be remanded 

to a different bench officer is denied.