Filed 11/3/15 Harrison v. Dourec CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

RICHARD HARRISON et al.,

Plaintiffs and Appellants,

v.
RACHEL DOUREC as Trustee, etc.,
Defendant and Appellant; B255832 (Los Angeles County Super. Ct. No. BP132350)

RICHARD HARRISON et al.,

Plaintiffs and Appellants,

v.

RACHEL DOUREC as Trustee, etc.,
Defendant and Appellant;

KENNETH S. WOLF,
Defendant and Respondent. B257352 (Los Angeles County Super. Ct. No. BP132675)2

APPEAL from an order of the Superior Court of Los Angeles Co unty, Mitchell L. Beckloff, Judge. Affirmed. Richard Ross and Mitchell Keiter, for Plaintiffs and Appellants Richard Ross, Gary Storer, Daniel Storer
, Sebastian Harrison and Richard Harrison

. Hoffman, Sabban & Watenmaker and Kenneth S. Wolf for Defendan t and Appellant Rachel Dourec. Meyers McConnell Reisz Siderman, Frederick S . Reisz and S. Seth Kershaw for Defendant and Respondent Kenneth S. Wolf.

_________________________________________

Appellants Richard Ross, Gary Storer, his s on Daniel Store r, and siblings
Sebastian and Richard Harrison , beneficiaries under the Zeltonoga Family Trust,
filed two petitions in probate: one , naming respondent and cross

- appellant Rachel
Dourec as an individual and as the sole trustee , sought to invalidate the mos t recent version of the trust on various grounds, including forgery and undue influence ; the
other s ought damages from certain individuals, including respondent Kenneth
Wolf , the attorney responsible for preparing the purportedly invalid version of the

tru st

. 1 The court denied the petition s, finding among other things that the signatures on the trust were authentic. It further found , however, that appellants had probable cause to bring the contest , precluding application of the trust’s no contest clause u nder Probate Code section 21311

.

1 The petition for damages also named Dourec, Lowell Wedemeyer, an attorney and another beneficiary under the trust, and Hoffman, Sabb and Watenmaker (Wolf’s law firm) . Appellants do not seek to revive their claims against Wedemeyer or Hoffman, Sabb and Watenmaker.3

Appellants appeal the order denying their contest petition and petition for damages. The ir sole contention is that the court’s finding that the signatures were authentic was not supported by substantial evidence. Doure c cross

- appeals
, contending the court’s findings with respect to probable cause were erroneous
, and that appellants should be disinherited

. We conclude the court’s findings with respect to the signatures were supported by substantial evidence
, and that

ap pellants had probable cause to bring the contest. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts
William L. Zelton o ga , a n attorney, died December 4, 2011 at the age of 70

. Zelton o ga suffered from terminal cancer and was hospitalized several times in his final days

. During his final hospitalization
, respondent Kenneth Wolf , a probate attorney, prepared a trust (the 2011 Trust) which left Zeltonoga ’s most valuable property

-- a fourplex on Croft Avenue in Los Angeles

-- t o respondent Rachel
Dourec , and appointed her trustee

. 2 There were two signatures purporting to be Zeltonoga’s on the document , both notarized by Wolf and dated November 20,
2011 . The same date, Zeltonoga purportedly signed an amendment to his will. His

2 The 2011 Trust also named appellants Ross, Gary Storer and the Harrisons, along with Lowell Wedemeyer and various charities as residual beneficiar ies of the estate. Appellant Daniel Storer was left Zeltonoga’s automobile

. Zeltonoga’s prior trust, executed May 11, 2008, left his estate to his brother Robert , but if Robert predeceased him, 70 percent was to be divided equally among appellants Ross, Gary Storer and the Harrison s , and three nonparties . T he remaining 30 perc ent was to go to various charities. Robert Zeltonoga died in July 2008. There were no other siblings. Neither Robert nor William Zeltonoga ever married, and neither had children.4

signature on the will amendment was witnessed by Wolf and George Baptist,
Zelton o ga’s caregiver

. 3
The 2011 T rust included a no

- contest provision
, stat ing : “If any devisee, legatee or beneficiary in this Trust Agreement, or any person who would be
enti tled to share in either Trustor’s estate through intestate succession, shall in any manner whatsoever, either directly or indirectly, oppose, contest or attac k this Trust Agreement or the distribution of Trustor’s estate hereunder, or seek to impair, inval idate or set aside any of the provisions of this Trust Agreement, or shall aid in doing any of the above acts, then in that event Trustor hereby gives to any such person the sum of One Dollar ($1.00) only, in lieu of any other share or
interest in Trustor’ s estate, either under this Trust Agreement or through intestate
succession.”

B

. Petition to Determine Trust’s Validity and Petition for Damages On January 23, 2012, appellants filed a petition to determine the validity of
the 2011 T rust. The petiti on raised f ive grounds for the contest . The first
contended that the signature s on the 2011 T rust which purported to be Zeltonoga’s

w ere forger ies

. The petition stated that the signatures on the 2011 T rust , and the
durable power of attorney signed that s ame date
, had been analyzed and compared with known signatures of Zelton o ga by handwriting experts who concluded the signatures were not his.
In the second ground for contest, the petition alleged that the 2011 T rust was the product of undue influence e xercised by Dourec

. It alleged that Dourec ’s

3 On the same date, Zeltonoga also purportedly signe d a durable power of attorney. Except insofar as the signatures on the will and durable power of attorney support that Zeltonoga did or did not sign the 2011 Trust, those documents are not at issue in this appeal.5

relationship with Zeltonoga had been as a clerical assistan t in connection with the administration of an unrelated trust. In July 2011, when Zelton o ga suffered a brain hemorrhage
, Dourec was present and drove him to UCLA Medical Center , “falsely represent[ing] to [Zeltonoga] she was on the Board

. . . . ” She was thereafter closely involved in his medical care

. She allegedly represented herself as
Zelton o ga’s sister
, and w hen he was hospitalized
, “bedridden ” a nd “ helpless
, ”
D ourec purportedly “isolated [Zelton o ga] from his friend s ,” “barred entry at the hospital,” and “blocked multiple telephone calls
, ” while she “creat[ed] an environment of unnatural flattery and ultimately dependence.” Dourec purportedly

ass isted Zeltonoga with estate planning during this time , and “instructed and caused an attorney to prepare a document to be purportedly executed by [Zeltonoga] as an amended trust that would leave the majority of his assets to [Dourec].” As a third ground for contest, the petition alleged that Zelton o ga had insufficient mental capacity to understand the nature of his actions at the time the
2011 T rust was executed. The fourth ground for contest was fraud, based on the allegation that Dourec “isolat[ ed ]” Z elton o ga and “convinc[ ed ] him th at only she cared for him and that she should receive the greatest share of [ his ] assets.” Finally, t he petition alleged as a fifth ground for contest that Zeltonoga was a “dependent adult” and Dourec a “ care custodian ” wit hin the meaning of Probate Code section 21380, subdivision (a), albeit one providing services “ without
remuneration ,” giving rise to a presumption under the statute that the donative
transfer was “ the product of fraud or undue influence. ” 4

4 On March 2, 2012, after receipt of a copy of the 2011 T r ust, appellants filed a supplemental petition including the trust document as an exhibit

. The factual allegations of the supplemental petition were not substantially different from the original petition. In the interim between the original petition and t he supplemental petition, appellants also (Fn. continued on next page.)6

On September 4, 2012, appellants Ross , Gary Storer an d the Harrisons filed a petition for damages, seeking remuneration from Wolf and others . The petition

re

- pled many of the factual allegations of the petition contesting the validity of the
2011 Trust.

B. Eviden ce at Trial
1. Appellants’ Case in Chief The matter was tried to the court. During appellants’ case in chief, witnesses testified that Zeltonoga suffered a brain hemorrhage in July 2011. At the time,
Dourec was his employee , assisting him with the ta sks necessary to the
administration of a friend’s trust. 5 Dourec was present w hen Zeltonoga became ill

. S he drove him to the emergency room at the UCLA Medical Center, where she

was on the board of the UCLA Health System Auxiliary , which raises funds for special programs at the hospital

. Dourec told hospital personnel she was

received a one

- page handwritten document dated October 31, 2 011, which purported to be an amendment to the Zeltonoga trust and a codicil to his will . (Although it purported to amend both Zeltonoga’s trust and his will, this document will be referred to herein as the “holographic will” to distinguish it from the 2011 Trust.) The holographic will added Dourec and Wedemeyer as 10 percent and 20 percent beneficiaries, respectively, and

nam ed them co

- trustees along wit h appellants Ross and Gary Storer

. The supplemental petition asked the court to declare the holographic will invalid on the same grounds raised to contest the 2011 Trust

. Because we affirm the trial court’s conclusion that the 2011 Trust was valid, we ne ed not address the validity of the holographic will.

5 Dourec testified that she met Zeltonoga in the late 1980’s or early 1990’s , and that they had a brief romantic relationship. Thereafter, they became good friends, going out regularly for lunch and di nner, and attending social functions together. In 2009, after Dourec’s friend and former employee Marilyn Jensen died, Zeltonoga hired Dourec to help him with the administration of Jensen’s trust.7

Zeltonoga’s sister. 6 Dourec told Zeltonoga’s friends she was on “the

. . . board” at
the Medical Center

. In August 2011 , Dourec was appointed to be one of Zeltonoga’s representati ves i n his healthcare directive. 7 After recovering from the brain hemorrhage, Zeltonoga remained in poor
health and lost considerable weight

. He was hospitalized for a second time o n October 20, 2011 and diagnosed with gastric cancer

. Between November 6 and
17 , he was out of the hospital, convalescing at home. On November 17, 2011, he was hospitalized for a third and final time. He was released November 26 and died
at home. During this period, Dourec was his constant companion . She took him to
medi cal appointments and interacted with doctors on his behalf. Sebastian Harrison had known Zeltonoga more than 40 years and consider ed
him a “ father figure ” and a close friend. Prior to his illness, t hey spent time together every week. Dourec called Har rison when Zeltonoga was hospitalized in July 2011

. Harrison visited him multiple times
, and drove him home after his discharge

. Dourec did not inform Harrison of the October 20, 2011 hospitalization
for some time , although Harrison was co

- agent on Zelto noga’s healthcare directive and called and spoke with her several times inquiring about Zeltonoga after it
occurred

. 8 When Harrison met Dourec, Zeltonoga told him that she was his assistant, helping administer the unrelated trust. On one occasion when Ha rrison visited Zeltonoga near the end of November 2011
, Zeltonoga was hallucinating.

6 Dourec said she did so in the hopes of obtaining bett er treatment for Zeltonoga or more expeditious access to specialists based on her connection to the Medical Center as a volunteer on the Auxiliary Board.

7 Sebastian Harrison was the other representative. In October 2011, Sebastian was replaced by Gar y Storer.

8 Dourec testified she was following Zeltonoga’s request that he be allowed to inform his friends of his diagnosis in his own time.8

Gary Storer had know n Zeltonoga 33 years. They vacationed together.
Storer’s son, Daniel, was Zeltonoga’s godson. Storer visited Zeltonoga many
times when he was ill , including November 18, 2011. On that day, Zeltonoga was unable to carry on a conversation and appeared to be hallucinating. Although
Storer was co

- agent on the healthcare directive after October 2011, Dourec
consulted with him about Z e ltonoga’s care on only one occasion. When Storer met Dourec, Zeltonoga said she was helping him with administrative tasks related to a trust, and happened to be present when he suffered the hemorrhage.
Richard Ross , also an attorney, had kn o w n Zeltonoga 35 years. For a l engthy period, they shared office s pace , and sometime s work ed together. On November 19, 2011, Ross saw Dourec going over papers with Zeltonoga in his hospital room. She said they were “ ‘ estate planning. ’ ” Multiple witnesses who had know n Zeltonoga for a long time , including appellants
, testified they had never heard Zeltonoga refer to Dourec as his friend
, although he often talked about other friends

. Appellants and other witness es described seeing signs on Zeltonoga’s hospital room door and the do or of his residence discouraging visitors. Witnesses also said they were turned away by Dourec or staff when they attempted to visit Zeltonoga during his illness
, at home and at the hospital

. W itnesses observed Dourec or Wedemeyer or both of them in
Zelt onoga’s home office, going through his desk and papers. Dr. James Spar, appellants ’ medical expert, testified that although he believed Zeltonoga had testamentary capacity in the latter part of November 2011
, Zeltonoga was cognitively impaired , render ing him susceptible to undue influence. Wedemeyer testified that on November 19, 2011, Zeltonoga told him he wanted to leave the apartment building to Dourec

. Zeltonoga gave Wedemeyer a file containing testamentary documents, including the holographic will
, and asked Wedemeyer to take some notes. Wedemeyer soon realized Zeltonoga wanted him9

to prepare an amend ed will and trust that name d him a beneficiary

. H e informed Zeltonoga that would not be appropriate. He advised engaging Wolf. 9
Wolf testified h e received a call from Wedemeyer on November 1 9 , 2011. He called Zeltonoga and was put through by Dourec, who answered Zeltonoga’s phone. 10 When he arrived at the hospital, Dourec was in Zeltonoga ’s room , but left while Wolf talked to Zeltonoga . Zeltonog a described Dourec as a very dear friend
, “like [ a ] sister” to him, and someone who had been invaluable to him in the previous months, assisting him with his medical needs. He said he wanted her to have the apartment building , and that “of all of the bene ficiaries, she probably
could use it the most.” Wolf made notes on Zeltonoga’s intended disposition of his

assets. Before Wolf left, Dourec handed him a file containing Zeltonoga’s

pre existing will and trust and the holographic will

. Wolf prepared the amended will and trust and the durable power of attorney

. He returned to the hospital November 20 in the evening and went over the documents with Zeltonoga. Discovering he had spelled Zeltonoga’s name and the
name of one of the residual beneficiar ies in correctly, Wolf returned to his office
and made corrections. When he returned later that evening , Zeltonoga signed the
documents in Wolf’s presence . Wolf witnessed the signature on the will and asked George Baptist , Zeltonoga’s aide, to be the second wit ness. 11 Wolf testified Baptist was present when Zeltonoga signed all the documents at issue: the 2011

9 Zeltonoga, Wedemeyer and Wolf had been classmates at Harvard Law School.

10 Dourec recalled that she pla ced the call to Wolf and then put Zeltonoga on the line.

11 Wolf was under the misapprehension that Baptist was a hospital employee and was surprised when he agreed to serve as a witness, as hospital employees are generally not allowed to witness wills.10

Trust , the amended will, and the durable power of attorney. 12 Wolf forgot to obtain Zeltonoga’s thumbprint in his notary journal. In the notary journal,
Dourec’s driver’s license number was written in the space for Zeltonoga’s driver’s license number, then crossed out

. Baptist had been hired to stay with Zeltonoga and assist him. He worked 12

- hour shifts, beginning November 11, 2011 and continuing unt il Zeltonoga’s death.
He testified that Zeltonoga referred to Dourec as his sister when he introduced her to Baptist. O n the night of November 18, he was told by Dourec not to give Zeltonoga morphine because he had a very important decision to make. Bap tist was asked to witness Zeltonoga’s signature on a document, but was not told the nature of the document. He recalled Zeltonoga signing only one document in his

presence . Zeltonoga was sitting up and wrote slowly at the time , but did not appear to be h aving difficulty signing the document

. Howard Rile, the appellants ’ handwriting expert, testified that he was “virtually certain” that the signature s on the documents at issue

-- the 2011 T rust, the will amendment and the durable power of attorney

-- we re not Zeltonoga’s. 13 The first portion

-- the “Zelt”

-- differed significantly from Zeltonoga’s know n signature on other documents , includ ing a check he had signed November 20,
2011 . In addition, the signatures were written slowly , which is an indication of forgery

. 14 Rile knew generally that Zeltonoga was hospitalized on November 20
and in very poor health , but did not know the exact nature of his illness , that he had

12 Wolf later testified that Zeltonoga signed each of the documents “ slowly ” and

“ deliberately ” while lying in bed, stoppin g at time s due to pain.

13 Rile concluded, however, that the signature on the holographic will was Zeltonoga’s.

14 Rile found n o evidence of tracing or copying. He saw evidence the signatures were all written by the same person.11

lost a significant portion of his body weight, or that his morphine drip had been stopp ed prior to his signing the documents. Nor did Rile know how Zeltonoga was positioned in relation to the documents when he signed. Rile acknowledged that these factors could cause an authentic signature to look different. On cross

examination, Rile conc eded that given his degree of certainty, which he described as an eight on a scale of nine, his opinion had “an element of doubt” and there was a “slight chance” the signatures could have been Zeltonoga’s.

2. Section 631.8 Motion s After appellants r ested, Dourec and the respondent s to the petition for damages moved for judgment under Code of Civil Procedure section 631.8. 15
Dourec’s c ounsel contended the record was devoid of evidence that Zeltonoga lacked capacity. Ross, acting as counsel for appell ants , conceded the point. Ross
also conceded that there had been no evidence introduced by appellants that
Dourec was a paid care custodian. The trial court granted the motion with respect to the lack of capacity and care custodian grounds for the contes t

. 16
The court examined fraud and undue influence together. 17 It concluded appellants had not succeeded in shifting the burden of proof to Dourec

. I t was

15 Code of Civil Procedure s ection 631.8 provides: “After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the fact s shall weigh the evidence and may render a judgment in favor of the movin g party

. . . . ”

16 The trial court also granted Wedemeyer’s motion for judgment in his favor in its entirety.

17 This was at the behest of Dourec’s counsel , who asserted that undue influence and fraud were “ predicated on the same allegations”

-- that Do urec “ forced or pressured

. . . Zeltonoga to make

. . . changes ” and “overbore [his] free will ”

-- and should be (Fn. continued on next page.)12

clear Dourec had a confidential relationship with Zeltonoga

. 18 In addition, evidence supported the conclusion that she “profited unduly” under the trust.
However , the court found no evidence of active procurement by Dourec. Wedemeyer was active in arranging for Zeltonoga to see Wolf ; Dourec’s
involvement was limited to either initiating the call with Wolf or picking up the cell phone when Wolf called

. T he court nonetheless denied the Code of Civil
Procedure section 631.8 motion as it pertained to fraud/undue influence. Noting that evidence in support of such claims often was circumstantial, the court stated: “I’ve got an . . . ill man. He’s terminal. He’s dying of cancer. I have signs on hospital door s and on an apartment door that say, go away. [¶] I have

. . . evidence that Rachel Dourec is controlling who has the ability to see [Zeltonoga] and who does not have the ability. I have Rachel Dourec who’s interacting with doctors. I have Rachel Dourec who’s interacting with caregivers at home. [¶] I think that the petitioner [s] ha [ve] made a circumstantial case of undue influence.” With respec t to forgery, the court found Rile’s testimony “quite compelling.” T he court was “really bothered by the signatures,” having observed during the appellants ’ case that “the ‘Z’ ” on the suspect documents was

“ completely different” from its appearance on con firmed documents, and that t here were no exemplar s indicating that Zeltonoga “ ever signed his name like [the documents in issue] ha d been signed.” The court was troubl ed that the page in Wolf’s notary book authenticating Zeltonoga’s signature s was not pro perly completed, that Dourec’s driver’s license number appeared in the space for

considered together. The court agreed that “fraud and undue influence [ we re] sort of a collapse d cause of action or claim.”

18 Specifically, the court found the evidence supported that “ [ s ] he was helping him”;

“ [ s ] he was consistently there”; “ [ s ] he was dealing with caregivers”; “ [ s ] he was helping with medical issues”; and “ [ h ] e relied on her.”13

Zeltonoga’s driver’s license number, and that Wolf had not been prepared with a witness when he arrived at the hospital, although he knew hospital personnel generally refuse t o witness testamentary documents. The court concluded that before rendering judgment on whether the signatures on the 2011 Trust had been forge d, it would need to hear from respondents and
, in particular, their forensic
document examiner.

3. Defense Case Wesley Grose , respondents’ forensic document examiner, had studied many more exemplars of Zeltonoga’s confirmed signature than Rile

-- approximately
70. 19 He observed similarities between the suspect signature s and some of the confirmed signatures. In particular, h e found some exemplars with a similar “Zelt”
combination. On t

he whole, he believed there was “more weight on the side ” that the suspect signatures were Zeltonoga’s due to the similarities he found and the other factors he considered, suc h as Zeltonoga’s health and the position in which he was writing. Grose could not say, however, that there were “ more similarities
than variations ” based solely on the writing styles

. Grose agreed with Rile that the signatures had been written slowly, bu t explained that this could have been due to
factors other tha n forgery , such as physical demands or disability. Grose
concluded it was impossible to reach “a conclusion of authorship or

non [

- ] authorship ” based on the signature s. In Grose’s view, t he evi dence simply
did “ not allow [one] to say whether or not it was written by a particular writer.”

19 Because appellants raise no contentions relat ing to the court’s findings on issues other than forgery, we do not summarize the other evidence introduced by respondents. We note, however, that substantial evidence supported that Zeltonoga was of sound mind
, that he and Dourec had had a personal and a micable relationship for many years, and that he was grateful to Dourec during his final illness for the care she provided and the efforts she made on his behalf

.14

Using the same nine

- point scale as Rile, Grose placed the degree of certitude at five, meaning that the determination as to authenticity was necessarily
inconc lusive.

C. Trial Court’s Decision The court wrote a lengthy and detailed statement of decision, thoroughly reviewing all the issues and evidence. For purposes of th e appeal, the most significant finding was that the signatures on the 2011 Trust were not forgeries. Concluding that Grose’s opinion was “more credible and persuasive overall, ” the
court based its finding on the evidence that Rile believed serious illness, medication, weakness, and the writer’s physic al position could affect his signature
, that Grose found “ more similarities than differences ” between the questioned signature s and the exemplars, that Grose “appeared to take into account more detail concerning [Zeltonoga] and his physical condition,” and that Rile admitted “there

was a ‘ slig ht chance ’ [Zeltonoga] could have signed the documents in issue

. ” The court explained that in reaching its conclusion on forgery, it did not consider the expert s’ opinions in a vacuum, but considered them “along with all of the other evidence presented in the entire case on the issue

. . . . ” The court found the testimony of Wolf and Baptist credible. There was “nothing during their direct testimony or cross

- examination that did not appear to ring true.” “ W hile the specific details i n the narratives o f the execution of the documents wer e not entirely consistent, ” such inconsistencies were “considered along with all of the
other relevant evidence.” The court found no evidence that Wolf had a motive to lie about preparing the estate planning documents a nd having Zeltonoga sign them

. Nor had appellants identified any motive Baptist had to lie about witnessing Zeltonoga sign at least one document. In addition, the court found that Wolf had much to lose by forging documents and committing perjury, as he w as a State Bar15

certified specialist in estate planning, chair of the USC Gould School of Law Trust and Estate Conference, and a fellow of the American College of Trust and Estate
Counsel. With respect to undue influence, the court found evidence of a co nfidential relationship between Dourec and Zeltonoga: “She was assisting him with his personal needs during a time when he knew his illness was terminal” and he “placed great trust i n

. . . Dourec.” 20 However, the evidence did not support that
Dourec had actively procured the preparation or execution of the estate planning documents. She had no preexisting relationship with Wolf
, and it was Wedemeyer
who contacted Wolf to say that Zeltonoga wished to change his estate plan. The court was not persuaded ot herwise by the “[t]he single call

. . . which resulted in

. . . Dourec passing the phone to [Zeltonoga]” or by “the brief encounters

. . . Dourec ha d with

. . . Wolf at the hospital.” Although Dourec may have reviewed papers with Zeltonoga to help him “es tate plan[],” the evidence that Wolf counseled him confidentially and that all of Wolf’s information about Zeltonoga’s testamentary desires came directly from Zeltonoga established to the court’s
satisfaction that the plan was his. With respect to wheth er the gift to Dourec represented an unnatural disposition, the court pointed out that in November 2011, Zeltonoga had no surviving close relatives . H is prior wills and trusts
, prepared before his mother and brother died, le ft the apartment building to on e of them. In other words, “[p]etitioners only received an interest in the apartment building [in prior wills and trusts] as an alternate disposition, a default. In each of [Zeltonoga’s] prior estate

20 Although appellants do not challenge the court’s findings on undue influence or any of t he grounds for the contest other than forgery, the court’s discussion of the evidence relevant to the other areas of the contest has bearing on the cross

- appeal, which contends appellants lacked probable cause to challenge the 2011 Trust on any ground.16

plans, the apartment building was left for immediate f amily with a number of individuals to share in the disposition of the apartment building if immediate family predeceased the decedent.” Thus, the estate planning documents prepared in 2011 represented “the first time [Zeltonoga] had to make a plan for his assets where he knew that family members would not be receiving his estate.” Because Dourec provide d substantial care for Zeltonoga in the last months of his life, he was grateful to her. Accordingly, t he court f ound the gift was not unnatural and
did n ot represent an undue benefit.
Because the court found in sufficient evidence to support active procurement or unnatural disposition, the burden of proof was not shifted to Dourec to disprove
undue influence

. The court , therefore, considered whether a p reponderance of the evidence as a whole supported an inference that the 2011 Trust was the product of
undue influence. The court concluded it did not. The court found that Zeltonoga’s mental functioning was intact during the relevant period, and that he could reason and understand consequences. The court further found that Zeltonoga was separately and confidentially counseled and reasonably believed that Dourec would benefit more from the gift than others in his acquaintance. In view of these findings, t he preponderance of the evidence did not support that the 2011 Trust was the produce of undue influence. 21
The court’s final ruling addressed whether appellants had probable cause to bring the contest, which would determine whether they were disinherite d under the
2011 Trust ’s no contest provision

. Because the petition was filed January 23, 2012, the court concluded the key issue was what appellants knew at that time.

21 The court went on to find in favor of the remaining respondents (Wolf and his law firm) on the claims in the petition for damages. The only aspect of the ruling at issue in the appeal is the claim of forgery as it relates to Wolf.17

W ith respect to the allegations that Zeltonoga’s signatures had been forged , the

cour t found a clear basis to support probable cause. T he appellants had retained
Rile
, and he had opined that the signatures on the 2011 Trust w ere forged prior to
the petition’s filing date

. The court found the same true with respect to undue
influence. Am ong other things, the court found that it was reasonable for appellants to believe and assert that Dourec isolated Zeltonoga from his friend s by controlling his visitation and contact
, and that Zeltonoga ’s significant health issue s render ed him vulnerable to undue influence. The court found the fraud ground for
the contest supported in the same manner as the undue influence ground . The allegations of lack of testamentary capacity w ere reasonably based on appellants ’ knowledge that Zeltonoga had suffered m ultiple hospitalization s , experience d substantial weight loss, and signed the testamentary documents 14 days before he
died. In its original statement of decision, the court asked for further briefing on
the allegation that Dourec was a “ ‘ care custodian ’ ” within the meaning of Probate
Code section 21380

. After reviewing the briefing, t he court concluded in a separate order that there was probable to cause assert that basis for the contest. The definition of care custodian , found in Probate Code section 21362
, includes a person who provides “health or social services to a dependent adult.” The court concluded that at the time they filed the contest, appellants knew Dourec was providing such social services to Zeltonoga, who fit the definition of depende nt adult. 22 The definition of care custodian does not include a person who provides
such services “ ‘ without remuneration ’ ” where that person “ ‘ had a personal

22 A dependent adult in cludes a person 65 years of age unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter or having difficulty resisting fraud or undue influence due to deficits in mental function. (Prob. Code, § 21366.)18

relationship with the dependent adult (1) at least 90 days before providing those
services ’ ” and “ ‘ (2) at least six months before the dependent adults’ death. ’ ” The

court found that appellants had no reason to believe Dourec had a personal relationship with Zeltonoga prior to his illness, as they had been informed by Zeltonoga that she was an employee
, and they had never heard him speak of
Dourec other than in a business context . Based on these findings, the court ruled
that appellants had probable cause to assert that Dourec was a care custodian

. Appellants appealed the order denying the petition s ; Dourec appealed the order finding probable cause for the contest

.

DISCUSSION
A. Appeal Appellant s contend the court erred in finding, contrary to Rile’s expert opinion, that the two Zeltonoga signatures on the 2011 Trust were authentic. Appellant s ass ert that Rile’s testimony was uncontradicted
, as Grose ’s “nonopinion” did not establish the validity of the signatures , and there was
insufficient evidence to otherwise support the finding

. It is true that the trier of fact “is not entitled, arbitrarily or upon mere caprice, to disregard uncontradicted
, entirely probable testimony of unimpeached witnesses.” ( Man t ony a v. Bratlie (1948) 33 Cal.2d 120, 127.) However, expert testimony, like that of other witnesses, need not be credited unconditionally :

“ [ E] xpert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary .” ( Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 509 ; accord, Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d19

875, 890 ; Howard v. Ow ens Corning (1999) 72 Cal.App.4th 621, 633. ) 23 W here uncontradicted testimony has been rejected by the tri er of fact
, “ it ‘cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of
such a nature that it cannot rational ly be disbelieved.’ [Citation.]” ( Adoption of
Arthur M . (2007) 149 Cal.App.4th 704, 717 .) Here, there was nothing arbitrary about the trial court’s determination of the forgery issue. After examining a limited number of exemplars, Rile testified he

was “virtually certain” the signature on the 2011 Trust was not Zeltonoga’s. His opinion was based in large part on the differences between the way Zeltonoga usually wrote the first syllable of his name and th e way it appeared on the suspect
documents. Rile conceded his degree of certainty left some room for doubt. He
also conceded he had not been aware of all of the factors that could have affected Zeltonoga’s writing ability, including the pain he may have been experiencing as a result of the cessation of the morphine drip and his physical position in relation to the documents he was signing

. Grose examined many more exemplars and found some authentic signatures in which the “Zelt” resembled the writing on the suspect documents. He also found multiple ot her similarities between the authentic signatures and the suspect signatures. When he rendered his opinion, Grose was more familiar with all the circumstances surrounding the signing of the November
20 documents . He concluded that although there was “mor e weight” on the side of authenticity, there was insufficient evidence to support a definite opinion either way. As the court found, this undermined Rile’s opinion.

23 The exception to this rule is in malpractice cases, “ where the standard of care, when testified to by experts who are uncontradicted, may be conclusively shown by such testimony .” ( Conservatorship of McKeown
, supra , 25 Cal.App.4th at p. 509; Howard v. Owe ns Corning , supra , 72 Cal.App.4th at pp. 632

- 633.)20

Having reasonably found the physical evidence and the testimony of the experts inconclu sive , the court was free to rely on other evidence to determine whether the signature on the 2011 Trust was forged. Wolf and Baptist were witnesses to Zeltonoga’s signature on the will. They both testified that he signed that document in their presence. This supported an inference that other documents signed at the same time were authentic. In addition, Wolf testified in detail concerning meeting with Zeltonoga
, ascertaining his desires, putting the testamentary documents together
, and obtaining Zeltono ga’s signature on all of
them. Appellants point out that there were inconsistencies between Wolf ’s and Baptist’s testimony: Wolf said Zeltonoga was in pain and signed haltingly and that Baptist was present for the signing of all the documents, whereas Ba ptist recalled Zeltonoga signing slowly but without difficulty and observing hi m sign only one document. The court acknowledged these discrepancies but found them
insufficient to warrant discredit ing the witnesses’ testimony. We are bound by the
court’s credibility findings. 24 (See Lenk v. Total

- Western, Inc . (2001) 89 Cal.App.4th 959, 968 [“‘ “ [I]t is the exclusive province of the [trier of fact] to determine the credibility of a witness

. . . . ” ’”]; People v. Leigh (1985) 168 Cal.App.3d 217, 221 [“[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.”].)

24 Appellants contend Wolf was biased when he testified in support of authenticity, as he had been hired by Dourec to represent her in connection with administration of the 2011 Trust and was himself a p arty to the proceedings. Appellants’ theory is reliant not only on Wolf ’s committing perjury at trial in 2013, but on his being complicit in forging testamentary documents or covering up a forgery in November 2011. As the court found, Wolf had nothing to gain and much to lose had he become involved in such a scheme. Moreover, as the court further observed, there was no basis to discount Baptist’s credibility. He had no reason to lie about seeing Zeltonoga sign a document in the hospital in the presence of Wolf.21

In an att empt to bolster their challenge to the court’s findings , a ppellants
mischaracterize Gr ose’s testimony as suggesting that “70

- plus documents was an insufficient number for anyone to determine authorship

. . . . ” (Italics added.) They cite cases in which a single exemplar supported a handwriting expert’s opinion. (See, e.g., People v. Youn g (1941) 17 Cal.2d 451, 453.) Grose did not suggest that 70

- plus documents was an insufficient number ever to support a conclusion; he testified that after reviewing 70

- plus confirmed Zeltonoga signatures, he found sufficient similarities with the suspect signature to preclude
him

-- and by implication any other expert

-- from saying with certainty that the suspect signatures were not Zeltonoga’s. Appellants quote statements the court made at the hearing on the Code of
Civil Procedure section 631.8 moti ons , suggesting that the court itself observed sufficient differences to require a contrary finding. It is clear from the record that

t he court was troubled by Rile’s testimony and the differences between the suspect signature and the exemplars Rile’s exa mined . However, after hearing Grose’s testimony and viewing the confirmed signatures Grose reviewed , the court reasonably found that Rile’s testimony had been undermined. As for the other anomalies discussed by the court in denying the section 631.8 moti ons, such as the errors in the notary journal, none mandated a finding that the signatures were forgeries. In short, the trial court’s rejection of Rile’s expert testimony was not arbitrary or irrational, and we discern no basis to reverse its finding on forgery. 25

25 While we affirm the trial court’s judgment in respondents’ favor, we do not find appellants’ appeal to have been frivolous. Accordingly, respondents’ motion seeking sanctions for filing the appeal is denied.22

B. Cross

- Appeal
1. Enforceability of No Contest Provision “An in terrorem or no contest clause in a trust instrument ‘essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or
invalidate the trust i nstrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.’” ( Donkin
v. Donkin (2013) 58 Cal.4th 412, 422, quoting Burch v. George (1994) 7 Cal.4th 246, 265.) Such clauses “pr omote the public policies of honoring the intent of the donor and discouraging litigation by person s whose expectations are frustrated by the donative scheme of the instrument,” but are in tension with “policy interests of avoiding forfeitures and promotin g full access of the courts to all relevant information concerning the validity and effect of a will, trust, or other instrument.” ( Donkin, supra, 58 Cal.4th at p. 422. ) Whether to give effect to a no contest clause is governed by Probate Code
section 21311, effective since 2010, which provides in pertinent part : “A no contest clause shall only be enforced against

. . . [¶] (1) A direct contest that is brought without probable cause.” (Prob. Code, § 21311, subd. (a).) Probate Code

s ection 21310 , added to the Code at the same time as section 21311, defines

“ ‘[ c ] ontest ’ ” as “a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no contest clause is enforced” and a

“ ‘[ d ] irect contest ’ ” as “a cont est that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of the following grounds: [¶] (1) Forgery. [¶] (2) Lack of due execution. [¶] (3) Lack of capacity. [¶] (4) Menace, duress, fraud, or undue infl uence. [¶] (5) Revocation of a will pursuant to Section 6120, revocation of a trust pursuant to Section 15401, or revocation of an instrument other than a will or trust pursuant to the procedure for23

revocation that is provide by statue or by the instrumen t. [¶] (6) D isqualification of a beneficiary under Section s 6112, 21350 or 21380.” 26 Preliminarily, the parties dispute the circumstances under which Probate
Code section 21311 permits a no contest clause to be enforced. Appellants
contend that the pro vision precludes enforcement of a no contest clause if any ground of the petition for contest is supported by probable cause; Dourec contends
that a no contest clause is enforceable unless each ground for contest is supported by probable cause. T he plain language of section 21311 leads us to conclude that appellants are correct

. 27 As relevant here, section 21311
, permits enforcement of a no contest clause only against “[a] direct contest brought without probable cause.” (Prob. Code, § 21311, subd. (a)(1). ) Section 21310 defines a direct contest as a contest that alleges the invalidity of a testamentary instrument on “one or more [ of
the listed]

. . . grounds
, ” includ ing all of the grounds raised here

-- forgery, lack of capacity, fraud, undue influence, a nd undue influence of a care custodian. (Italics added.) Under the plain meaning of the words of the statute, it is the “ direct

contest ”

-- which may include “one or more” grounds

-- that must be supported by probable cause, not each and every ground of the contest . Had the Legislature intended otherwise, it could easily have defined each potential ground as a

26 As previously mentioned, Proba te Code section 21380, subdivision (a)(3) creates a presumption of undue influence for transfers made to a “care custodian of a transferor who is a dependent adult” under certain circumstances.

27 The rules governing statutory construction are “well settle d.” ( Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Courts are to be guided by “the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.]” ( Ibid .) The first step “is to scruti nize the actual words of the statute, giving them a plain and commonsense meaning.” ( People v. Valladoli (1996) 13 Cal.4th 590, 597.) “If the statutory language is clear and unambiguous, there is no need for construction.” ( Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 606.) “[T]he Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.” ( People v. Johnson (2002) 28 Cal.4th 240, 244.)24

“ contest ” or state d that each “ ground ” of a contest must be supported by probable

cause. As it did not do so, we conclude it did not intend to di sinherit a petitioner if only one of multiple grounds alleged lack support

. 28
The words of a statute “may be disregarded to avoid absurd results ” or “ to give effect to manifest purposes that, in light of the statute’s legislative history, appear from its p rovisions considered as a whole.” ( East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist . (1989) 210 Cal.App.3d 155, 166.) Interpreting the provisions to require that the entire contest lack probable

cause before the no contest c lause can be given effect would not lead to absurd results. Many time s , the grounds raised in a will or trust contest are interrelated. An elderly or seriously ill decedent is likely to have some level of diminished

28 Dourec brings to our attention the recent decision of the Arizona Court of Appeals in In re the Shaheen Trust (2015) 236 Ariz. 498
, which held “when a single petition alleges multiple challenges to a will or trust, and the challenges are brought in contravention of a no

- contest provision, probable cause must exist as to each challenge.” ( Id . at p. 501.) The court relied primarily on the Restatement (Second) of Property: Donative Transfers, which states: “An otherwise effective provision in a will or other donative transfer, which is designed to prevent the acquisition or retention of an interest in property in the event there is a contest of the validity of the document transferring the interest or an attack on a particular provision of the document, is valid, unless there was probable cause for making the contest or a ttack.” (Rest.2d of Property: Donative Transfers, § 9.1 (1983).) But as the Restatement does not define “contest or attack
, ” the court used the definition in Black’s Law Dictionary, defin ing “ ‘ contest ’ ” as “‘ [ t ] o litigate or call into question; challeng e’” (236 Ariz. at p. 501, quoting Black’s Law Dictionary at 386 (10th ed. 2014)), and concluded: “ W hen a party brings nine claims against a trustee

. . . , that party litigates nine different challenges, and
, accordingly, contests nine separate claims. I f these nine claims had been presented in nine separate petitions, there would be no question that probable cause would have to support each claim to avoid forfeiture. We see no reason for a different result merely because the claims were asserted in a si ngle petition.” (236 Ariz. at p. 501.) Unlike the Arizona court, we are not free to use a dictionary definition of “contest.” We are bound by the statute’s definition s . The Legislature defined “contest” and “direct contest” to include “one or more” gro unds; accordingly, if any ground in the petition is supported by probable cause, it cannot be said that the contest itself lacks probable cause

.25

capacity, rendering him or her especia lly vulnerable to undue influence or fraud by a care custodian or other person in a close relationship. Where at least one ground in a petition to determine the validity of a testamentary document is supported by probable cause, defending related ground s that are less well supported will not impose an undue burden on the proponent of the will or trust. Moreover, to the extent the proponent has been financially burdened by the challenger’s assertion of less worthy ground s in an otherwise meritorious contes t, a n action for malicious prosecution provides a method of fair compensati o n. Enforcing a no contest clause, on the other hand, rewards the proponent of a will or trust with a lump sum that may have no bearing on the burden imposed by the contest and may unduly penalize a party who was simply attempting to ensure that a loved one’s wishes were respected

. Nor would it violate the L egislature’s intent which was both to simplify the law governing enforcement of no contest clauses, and to encourage those w ith
substantial grounds to question a will or trust to feel free to mount a challenge. (See Donkin v. Donkin
, supra , 58 Cal.4th at p. 425.) In recommending enactment of the provisions, the Law Review Commission stated: “An instrument should only be enfo rced if it expresses the free choice of a transferor who has the legally required mental capacity to understand the choice being made. An instrument that is the produc t of men ace , duress, fraud, or undue influence is not an expression of

the transferor’s free will and should not be enforced. [] An instrument executed by a transferor who lacks the requisite mental capacity is also not a reliable expression

of the transferor’s wishes and is invalid. [] For obvious reasons, a forgery is not given effect. [¶] If a no contest clause deters a beneficiary from challenging an instrument on any of those grounds, it may work against the transferor’s actual intentions, by protecting an instrument that should not be given effect.”26

( Recommendation: Revision of No Cont est Clause Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007) 359, 3 70

- 371 , fns. omitted .) The Commission recognized that “ [e] ven in a case where there is strong reason to suspect foul play, a beneficiary may still fall short of certainty that a co ntest would be successful. ” ( Id . at p. 388.) In such a case, absent the enactment of sections 21310 and 21311,

“ the abuse may stand unchallenged.” ( 37 Cal. Law Revision Com. Rep., supra, at p. 388 .) Our interpretation of the statute supports the aim of encouraging well supported grounds for contest by freeing litigants from concern that a single allegation added imprudently or due to an attorney’s misguided need for thoroughness does not lead to extreme consequences. Dourec contends Crowley v. Katleman (1994) 8 Cal.4th 666 support s her interpretation of the statutes . ( Id. at p. 671.) Our reading of the case convinces us
otherwise

. In Crowley
, a will contest had been brought by a wife who was disinherited by her deceased husband in favor of the decede nt’s friend. T he wife ’s

contest alleg ed six separate grounds for invalidating the will: (1) undue influence; (2) revocation; (3) the existence of another will; (4) lack of testamentary capacity; (5) lack of due execution; and (6) fraud in the inducement. ( Id . at p. 673.) After the probate court denied t he contest and , the decedent’s friend pursued a malicious prosecution action based on five of the six grounds asserted in the contest. ( Id . at
pp. 67 4

- 675 .) The Supreme Court held that a n action for mal icious prosecution may be pursued against a party who brings a will contest asserting multiple grounds where some, but not all, of those grounds were asserted without probable

cause. ( Id . at pp. 671, 693

- 69 5 .) At the same time, the court recognized that the probate court had reject ed the proposition that the wife should be disinherited under the will’s no contest provision , conclud ing that “‘the enforcement of the no contest clause is not a proper substitute for a malicious prosecution action for
whatever damages [the friend] can prove.’” (8 Cal.4th at p. 674.) Although the27

Supreme Court did not have cause to address the merits of the probate court’s decision, by including a discussion of it , the court implicitly recognized that the
determination whether a malicious prosecution action is tenable is independent
from a determination whether a no contest clause is enforceable

. A petitioner who
has asserted multiple grounds for contest, with malice and without probable cause
, may be faced with a malicious pr osecution action, without be i n g disinherit ed

. The holding in Crowley does not persuade us that the statutory provisions should be interpreted contrary to their plain language.

2. Probable Cause Even were we to conclude that lack of probable cause t o support a single ground permitted enforcement of a no contest clause, we would affirm the order at
issue. T he trial court ’s ruling that appellants had probable cause to assert all the grounds for contest in their petition is well supported by the eviden ce

. Subdivision (b) of Probate Code section 21311 provides : “For the purposes of this section, probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasona ble likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.” Discussing this provision, t he Law Revision Commission explained: “Existing law requires only that it be ‘likely’ that the

contestant w ill prevail. That degree of probability has been equated with the
standard th at governs malicious prosecution cases, requiring only that the contest be ‘legally tenable.’ [] T he Commission believes that such a standard is too forgiving. A no contest cla use should deter more than just a frivolous contest. General law already provides sanctions for frivolous actions. [] [¶] Instead, the proposed law would require a ‘reasonable likelihood’ of being granted relief. []28

That standard has been interpreted as r equiring more than a mere possibility, but less than a likelihood that is ‘more probable than not.’” ( 37 Cal. Law Revision Com. Rep. , supra, at p. 398 , fns. omitted .) In the instant case, t he trial court found
that at the pertinent time

-- when the petit ion was filed

-- probable cause existed to

assert all five grounds for the challenge. Reviewing the probable cause determination de novo based on the trial court’s factual findings, we agree. (See
Franklin Mint. Co. v. Manatt, Phelps & Phillips, LLP (201 0) 184 Cal.App.4th 313,
361

- 364; Arcaro v. Silva & Silva Enterprises Corp . (1999) 77 Cal.App.4th 152, 156; Puryear v. Golden Bear Ins. Co . (1998) 66 Cal.App.4th 1188, 1195.)

a. Forgery Citing a criminal case ( People v Gaul

- Alexander (1995) 32 Cal.Ap p.4th 735, 741), Dourec contends that in order to sustain a charge of forgery
, there must be evidence of intent to defraud, and although appellants had Rile’s opinion establishing a concrete basis for believing Zeltonoga had not signed the documents, they lacked any basis to believe the forger had the appropriate intent. Assuming another party had signed the 2011 Trust in Zeltonoga’s name, as appellants could reasonably have believed based on Rile’s opinion, the intent to
defraud was obvious. The evidence indicating the signatures had been written by someone other than Zeltonoga supported all of the element s of the forgery ground
for contest and provided probable cause for making the assertion

.

b. Undue Influence
Dourec contends the undue influence ground for contest lacked probable cause. She acknowledges there was sufficient evidence of a confidential relationship and undue benefit, but contends there was no evidence of active procurement or participation in obtaining the 2011 Trust on her part. Appellants29

presented evidence that Dourec was seen gathering papers from Zeltonoga’s office,
and going over documents with Zeltonoga in his hospital room to help him “estate plan” one day before Zeltonoga consulted with Wolf to change the terms of his
exi sting trust. Although the court ultimately concluded this was insufficient to shift the burden of proof to Dourec, it provided appellants with probable cause of
the active procurement element at the time of filing the petition. Moreover, active

procureme nt “may be established by inference

. . . . ” ( Estate of Baker (1982) 131 Cal.App.3d 471, 481.) “[T]he one using the undue influence [need not] be present in person at the time of the execution of the document if the influence is present to
constrain the party from exercising his free will.” ( Ibid .) “‘ “ That the alleged wrongdoer had power or ability to control the testamentary act may be established by a variety of circumstances,

-- such as control over the decedent ’ s business affairs, dependency of the decedent upon the beneficiary for care and attention, or domination on the part of the beneficiary and subserviency on the part of the
deceased. ” ’” ( Ibid ., quoting Estate of Washington (1953) 116 Cal.App.2d 139,
145

- 146 .) Given that Dourec was constantly at Zeltonoga’s side in his final
months of life , including the days he revised his will and trust , appellants had grounds to believe she caused him to engage an attorney to change the disposition
of his assets , regardless of any specific evidence that she engaged Wolf or was present when Zeltonoga consulted with Wolf and signed the testamentary
documents.

c. Fraud Ignoring t he position she took at trial, Dourec contends fraud should be considered separately from undue influence
, and that there was n o probable cause
for alleging fraud

. As courts have recognized, “‘ Oftentimes the terms “ undue
influence ” and “ fraud ” are used interchangeably. Thus it has been held that undue30

influence, even though exercised without the aid of actual fraud, or fraudulen t representations, is a form of fraud .’” ( Wells Fargo Bank & Union Trust Co. v. Brady (1953) 116 Cal.App.2d 381, 400 , quoting Estate of Newhall (1923) 190 Cal. 709, 718.) The finding that probable cause existed for alleging fraud was properly
based on th e determination that probable cause supported the undue influence allegations

.

d

. Lack of Capacity Contending appellants lacked probable cause to assert that Zeltonoga lacked capacity, Dourec asserts: “During the course of discovery, [appellants] were informed that Mr. Zel t onoga most likely had testamentary capacity,” gaining this knowledge on August 30, 2012, when appellants’ medical expert, Dr. Spar, “told
Mr. Ross that i t was extremely likely that Mr. Zeltonoga had testamentary capacity
on Novem

ber 20, 2011.” She contends “[a]t the end of August 2012, [a]ppellants should have dismissed the lack of capacity claim.” The statute specifically provides that the existence of probable cause is to be determined at the time of filing a contest

. It nowh ere suggests that the petitioner must update the petition
whenever new facts are uncovered. At th e time they filed the petition challenging the validity of the 2011 Trust , appellants were aware that on or around November 20, 2011, Zeltonoga was gravely il l, weakened by loss of weight, hospitalized, and ingesting multiple drugs. Sebastian Harrison and Gary Storer testified that in the latter part of November 2011, Zeltonoga was unable to carry on a conversation and appeared to be hallucinating. He died tw o weeks after signing the new testamentary documents. These facts were sufficient to warrant including lack of capacity as a ground for the contest. Moreover, assuming a duty to reassess the petition’s allegations as new evidence was uncovered, the recor d is clear that appellants did not litigate lack of capacity in their case in chief and conceded the31

lack of viability of this ground for contest when Dourec and the respondents to the damage petition sought judgment under Code of Civil Procedure section 6 31.8.

e. Care Custodian Probate Code section 21380, effective January 1, 2011, provides that “ [ a ] provision of an instrument making a donative transfer to any of the following

person s is presumed to be the product of fraud or undue influence

. . . A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.” Section 21362 defines

“ ‘[ c ] are custodian ’ ” as “a person who provides health or social services to a dependent adult, except that ‘care custodian’ does not include a person who provided services without remuneration if the pers on had a personal relationship with the dependent adult (1) at least 90 days before provid i ng those services, (2) at
lea s t six months before the dependent adult’s death, and (3) before the dependent adult was admitted to hospice care, if the dependent adult was admitted to hospice
care.”
As the trial court f

ound
, appellants had no reason to believe that Dourec, who was clearly providing services to Zeltonoga, had a personal relationship with
him th at preceded provision of those services or that began six months before Zeltonoga’s death as he had introduced he r as an employee and had never discussed his relationship with her with any of the appellants. Dourec provides no basis to question the se findings.32 DISPOSITION The trial court’s order denying the petition for contest, denying the petition for damages, and finding probable cause to bring the petition for contest is
affirmed. The motion for sanctions is denied. Each party is to bear his or her own

costs. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.