Filed 5/10/23 Piazzi v. Laffey CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

DIANE E. PIAZZI,

Plaintiff and Appellant,

v.

GERALD LAFFEY, JR., as Successor 

Trustee, etc.,

Defendant and Respondent.

 B305695

 (Los Angeles County

 Super. Ct. No. BP157757)

APPEAL from an order of the Superior Court of Los Angeles County, 

Daniel Juárez, Judge. Affirmed.

Nelle S. Paegel, for Plaintiff and Appellant.

Law Offices of Keith S. Walker and Keith S. Walker, for Defendant and 

Respondent.
2

INTRODUCTION

In this probate case, appellant Diane Piazzi petitioned to invalidate 

trust amendments made by her late mother, Evelyn Piazzi. Diane alleged

that Evelyn lacked capacity to amend the trust and that she did so because 

she was unduly influenced by respondent Gerald Laffey (Evelyn’s nephew) 

and other relatives. The case was tried to the probate court. The court 

granted a motion for judgment in Gerald’s favor after Diane’s case-in-chief. 

We affirm. Diane’s failure to prove her claims is well supported by 

substantial evidence, and we reject Diane’s other arguments on appeal. 

PROCEEDINGS BELOW

A. Diane Petitions to Invalidate the Trust Amendments

Due to disabilities, Diane receives means-tested public benefits. In 

June 1991, Diane’s mother Evelyn created the Revocable Living Trust of 

Evelyn C. Piazzi. Through special needs trust provisions, the trust expressed

Evelyn’s intent that after her death, the trust estate would be used to

supplement Diane’s means-tested benefits without disqualifying her from 

continuing to receive them. In March 1999, Evelyn executed a first

amendment to the trust, which deleted the special needs trust provisions and 

provided for the estate to be distributed directly to Diane after Evelyn’s 

death. 

In November 2002, Evelyn executed the second trust amendment, the 

heart of the parties’ dispute. In lieu of a direct distribution to Diane, the

amendment reinstated provisions to supplement and safeguard Diane’s 

receipt of public benefits after Evelyn’s death. It gave the successor trustee 

discretion to terminate the trust if the trust’s existence or any related change

in law would otherwise disqualify Diane from receiving any public benefits. 
3

The amendment designated respondent Gerald and his mother (Evelyn’s 

nephew and sister, respectively) as successor trustees. 

Between June 2004 and September 2007, Evelyn executed three 

further trust amendments, adding one of Gerald’s sisters (Evelyn’s niece) as a 

third successor trustee. 

Evelyn died in September 2014. In November 2014, Diane petitioned 

the probate court to invalidate the 2002 amendment and each subsequent 

amendment (collectively, the Trust Amendments). In May 2016, Diane filed 

her operative fourth amended petition, naming Gerald, his mother, and two 

of his sisters as defendants. 

In Diane’s first cause of action, she sought declaratory relief to 

invalidate the Trust Amendments on the grounds that: (1) the Trust 

Amendments were inconsistent with Evelyn’s intent to provide for Diane 

after her death; (2) Evelyn lacked capacity to execute the Trust Amendments 

at the time she signed them; and (3) the Trust Amendments were the product 

of undue influence exerted on Evelyn by Gerald and his relatives. Diane also 

alleged, in passing, that the copies of the Trust Amendments in the parties’ 

possession could not be authenticated as accurate copies of the originals. 

In Diane’s second cause of action, for breach of trust pursuant to 

Probate Code section 16400,1she alleged that with Gerald’s encouragement 

and assistance, Gerald’s mother and sisters committed theft and other crimes 

during a visit to Evelyn’s home “the week prior to Evelyn’s death.” Diane did 

not allege that any defendant was the trustee at any time prior to Evelyn’s 

death. 

1 Undesignated statutory references are to the Probate Code.
4

B. The Court Declines to Adjudicate Diane’s Second Cause of Action

Gerald demurred to Diane’s fourth amended petition. In September 

2016, the probate court (Judge William Barry) held a hearing on the 

demurrer. The court concluded that Diane had pled sufficient facts to 

support a claim for declaratory relief on her first cause of action. The court 

concluded that the second cause of action could not be pursued in the probate 

court, because Diane had not pled a breach of trust. The alleged theft at 

Evelyn’s residence and other claimed misconduct occurred before any 

defendant became a trustee (with the exception of an allegation concerning 

Gerald’s efforts to access trust funds, which the court found did not allege

misconduct). Thus, concluded the probate court, while Diane might be able to 

pursue a civil action based on the facts alleged in the second cause of action, 

she could not pursue a probate action.

Although the probate court stated on the record that it would not 

adjudicate the second cause of action, the court believed that it was obligated

for procedural reasons to overrule Gerald’s demurrer as to that cause of 

action. In his moving papers, Gerald demurred to the entire petition, not to 

the separate causes of action. Since the court overruled the demurrer to the 

first cause of action, it believed it was improper to sustain a demurrer to the 

second cause of action given the way Gerald presented the demurrer. The 

probate court made clear that it was overruling Gerald’s demurrer to the 

second cause of action only because of this procedural issue. The court stated 

that Diane was “on notice” that it was “not going to adjudicate a civil action 

in the context of this probate case.” 

The court directed Gerald’s counsel to prepare a proposed order

containing its rulings. However, Gerald’s counsel did not immediately

comply. In January 2017, during an unrelated hearing, the court renewed its
5

directions to Gerald’s counsel to prepare a proposed order. The court 

specified that the proposed order should reflect the court’s prior 

determination that it would not adjudicate any allegation that a defendant 

breached the trust at a time when the defendant was not the trustee. 

On March 24, 2017, the probate court signed and adopted a proposed 

order submitted by Gerald’s counsel as the final order overruling Gerald’s 

demurrer. The order stated that because “there is no allegation in the Fourth 

Amended Petition that any of the Respondents was serving as Trustee at the 

time of the acts complained of,” Diane’s second cause of action “may not be 

litigated in this proceeding” and “will not be adjudicated at such time as this 

matter comes on for trial.” The order contained a proof of service, which

stated that on March 15, the proposed order had been served on Diane’s 

counsel by overnight mail to her address of record.2 

At trial in July 2019, the probate court (Judge Daniel Juárez) 

precluded Diane from litigating her second cause of action, relying on Judge 

Barry’s March 24, 2017 order that the second cause of action would not be 

adjudicated. Diane’s counsel objected that she had not received notice of the 

March 2017 order, but the court overruled the objection. 

C. Diane Presents Her Case-in-Chief

Diane presented her case-in-chief at trial. Diane testified that after 

Evelyn’s husband died in 1991, Evelyn began gambling regularly and stopped 

keeping food in her home, opting to eat out instead. Diane further testified 

that Evelyn had shingles in 1992 and subsequently suffered hearing loss. 

2

Four months later (in July 2017), Diane’s counsel executed and served 

a notice of change of address, which she did not file with the court until 

November 2019. 
6

Two friends of Evelyn’s testified that Evelyn always kept her house 

extremely clean and orderly. Neither friend, however, viewed Evelyn’s 

cleanliness as a symptom of obsessive-compulsive disorder (OCD) or observed 

any decline in Evelyn’s mental faculties. 

Gerald testified that he never observed any sign of OCD in Evelyn. 

Evelyn had a very close relationship with Gerald’s mother (Evelyn’s sister). 

Gerald had promised Evelyn that after her death, he would take good care of 

Diane. 

Attorney Denise Kristof testified that she drafted the Trust 

Amendments. She explained that Evelyn’s purpose in executing the 2002 

amendment was to ensure that after her death, Diane would be taken care of 

and would continue receiving public benefits. Evelyn had “unwavering trust” 

that Gerald and his mother would care for Diane.3 Kristof further testified 

that she was present when Evelyn executed the Trust Amendments and that 

she never had reason to doubt Evelyn’s capacity. 

Evelyn kept the original versions of the Trust Amendments (which 

were not produced at trial). Kristof testified that she had kept unaltered 

copies, which she had emailed to Diane in the wake of Evelyn’s death. She 

testified that a copy of the 2002 amendment admitted into evidence as exhibit 

A—but omitted from the appellate record—appeared to be an authentic copy 

of the original.4 

3 Kristof refused to interpret the meaning of certain language in the 

2002 amendment on the ground that she was not testifying as an expert 

witness. Contrary to Diane’s suggestions on appeal, Kristof did not testify 

that she was incapable of interpreting the amendment or explaining it to 

Evelyn. 

4 Diane’s counsel directed Kristof’s attention to a page from her 

deposition transcript indicating that Diane’s counsel showed Kristof an 
7

Diane called a forensic document examiner, Patricia Fisher. Fisher 

testified that she had examined Gerald’s copies of the Trust Amendments, 

which were separately admitted into evidence. Fisher testified that various 

pages of Gerald’s copies bore marks—such as those left by staplers and hole 

punches—indicating that the documents had been disassembled, copied, and 

reassembled multiple times. On this basis, Fisher opined that Gerald’s 

copies had been “altered.” However, Fisher did not compare Gerald’s copies 

to Kristof’s to determine whether any content had been changed. Indeed, 

Fisher declined to express any opinion regarding whether Gerald’s copies of 

the Trust Amendments had been altered in content. She explained: “That’s 

not what I do as a document examiner.” 

Financial advisor Stephen Courtney testified that he handled 

investments and taxes for Evelyn. Although Evelyn acted against his 

investment advice on one occasion, he never had reason to question Evelyn’s 

capacity. He stated that Evelyn was very organized and understood all of 

their tax discussions. 

D. The Court Grants Gerald’s Motion for Judgment

At the end of Diane’s case-in-chief, Gerald’s counsel moved for 

judgment under Code of Civil Procedure section 631.8.5 The court heard 

argument and took the motion under submission. 

unidentified document and Kristof responded, “That’s not my document.” 

Kristof testified at trial that she did not recall which document she had been 

referring to at her deposition. Nothing in the record identifies this document, 

notwithstanding Diane’s assertions on appeal that it was a copy of the 2002 

amendment. 

5

“After a party has completed his presentation of evidence in a trial by 

the court, the other party . . . may move for a judgment. The court as trier of 
8

On August 30, 2019, the court issued a proposed statement of decision. 

It granted Gerald’s motion for judgment and denied Diane’s fourth amended 

petition. The court concluded that Diane had failed to satisfy her burden of 

proof on all of her claims: “There was no evidence that [Evelyn] did not intend 

to amend the Trust as she did in 2002, 2004, 2006, or 2007. What evidence 

there was supported the fact that [Evelyn] intended to make all amendments 

to the Trust that were at issue in this proceeding. There was no evidence 

that [Evelyn] did not have the capacity to amend the Trust. Thus, this court 

concludes [Evelyn] had capacity to amend the Trust. . . . There was no 

evidence that anyone unduly influenced [Evelyn] to amend the Trust. As 

such, the evidence failed to establish any of Petitioner’s claims.” 

The proposed statement of decision summarized the testimony given by 

Diane and her witnesses. With respect to Fisher’s opinion that Gerald’s 

copies of the Trust Amendments had been altered, the court observed that 

Fisher “could not say what substantive text portions, if any, of the Trust had 

been altered,” and found that “[n]one of Fisher’s opinions substantiated 

Petitioner’s argument that the Trust had been altered in any way that 

modified the substance of the Trust.” The statement of decision also

discussed the law concerning undue influence and noted that the court had 

considered the capacity standards set forth in sections 810 to 812. 

Diane filed no objections, and the court adopted the proposed statement 

as its final statement of decision on September 24, 2019. In October 2019, 

Diane moved under Code of Civil Procedure section 1008 for reconsideration 

of the court’s statement of decision. The court denied the motion. On 

February 11, 2020, the court issued a final order granting Gerald’s motion for 

the facts shall weigh the evidence and may render a judgment in favor of the 

moving party, in which case the court shall make a statement of decision.” 

(Code Civ. Proc., § 631.8, subd. (a).)
9

judgment and denying Diane’s fourth amended petition, to which the court

attached its statement of decision. Diane timely appealed. 

DISCUSSION

For the reasons below, we reject Diane’s contentions on appeal. We

hold: (a) Diane had the burden of proving the Trust Amendments invalid; 

(b) the probate court properly found Diane failed to meet that burden; (c)

Diane’s due process rights were not violated; and (d) the probate court 

properly admitted Gerald’s copies of the Trust Amendments. We also deny 

Diane’s motion for sanctions.

A. Diane Had the Burden of Proof

Diane argues that the probate court improperly assigned the burden of 

proof. She claims Gerald had the burden of disproving her claims for 

incapacity and undue influence. We disagree. 

The party alleging a trust settlor lacked capacity or was unduly 

influenced usually must prove those allegations. The Legislature has 

established a rebuttable presumption that “all persons have the capacity to 

make decisions and to be responsible for their acts or decisions.” (§ 810, 

subd. (a).) Consistent with this presumption, “‘[a] person challenging the 

validity of a trust instrument on the grounds that the trustor lacked capacity 

to execute the document or did so under the undue influence of another 

carries the heavy burden of proving such allegations.’” (Gomez v. Smith

(2020) 54 Cal.App.5th 1016, 1040; accord, Eyford v. Nord (2021) 62 

Cal.App.5th 112, 122; Ross and Cohen, Cal. Practice Guide: Probate (The 

Rutter Group 2022) ch. 15-A, ¶ 15:152.) 
10

Diane invokes burden-shifting presumptions that do not apply. First, 

as to undue influence, she cites to section 21380. That section establishes a 

rebuttable presumption of undue influence if an instrument makes a 

donative transfer to a person “who transcribed the instrument or caused it to 

be transcribed and who was in a fiduciary relationship with the transferor 

when the instrument was transcribed.” (§ 21380, subd. (a)(2).) It also 

establishes a conclusive presumption of undue influence if the instrument 

makes a donative transfer to “the person who drafted the donative 

instrument” or to one of the drafter’s relatives or associates. (§ 21380, 

subd. (c).)

Section 21380 does not affect this case. Gerald and the other alleged 

beneficiaries of undue influence (Evelyn’s sister and nieces) fall within a

specific exemption for close relatives. (See § 21382, subd. (a) [section 21380 

does not apply to any donative transfer to “a person who is related by blood or 

affinity, within the fourth degree, to the transferor”]; § 13 [sister is related in 

second degree and niece or nephew is related in third degree].)6 And, beyond

the statutory exemption, Diane did not even allege—much less prove—that 

Gerald or any of his relatives or associates was involved in drafting or 

transcribing the Trust Amendments or that any of them were fiduciaries of 

Diane at the time the Trust Amendments were drafted or transcribed. (See 

§ 21380, subds. (a)(2), (c); Rice v. Clark (2002) 28 Cal.4th 89, 101–105.) Thus, 

6 On appeal, Diane newly alleges that Evelyn was subjected to undue 

influence by attorney Kristof. Diane’s fourth amended petition made no such 

allegation. We need not and do not address this new theory on appeal. (See 

Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 

[“‘As a general rule, theories not raised in the trial court cannot be asserted 

for the first time on appeal’”].)
11

from any angle, the probate court was correct to not apply burden shifting 

under section 21380.

Diane also invokes Civil Code section 39. That contract-law rule

establishes a rebuttable presumption that a person who made a contract is of 

unsound mind “if the person is substantially unable to manage his or her own 

financial resources or resist fraud or undue influence.” (Civ. Code, § 39, 

subd. (b).) The relationship of Civil Code section 39 to the other capacity 

standards that exist under California law for the execution of a trust 

instrument may present difficult legal and factual questions and depend on 

the complexity of the instrument at issue. (See In re Marriage of Greenway

(2013) 217 Cal.App.4th 628, 642 [discussing relationship between Civ. Code,

§ 39 and other capacity standards contained in Prob. Code, §§ 811 and 812]; 

Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1350–1351 (Lintz) [discussing 

application of contract capacity standards to trust instruments].) But we 

need not address those issues. Diane has put the cart before the horse. For

Civil Code section 39’s burden-shifting presumption to apply, there must be a 

showing that the person whose capacity to contract is challenged was in fact 

“substantially unable to manage his or her own financial resources or resist 

fraud or undue influence.” (Civ. Code, § 39, subd. (b).) Here, as we discuss 

elsewhere in this opinion, there was no such showing. Rather, the evidence 

at trial tended to prove that Evelyn was well organized and independent. 

Accordingly, the probate court properly held Diane to her burden of proof. 

We now address whether she met that burden.

B. Substantial Evidence Supports the Finding that Diane Failed to 

Prove Her Claims

Diane argues that the evidence she presented required the probate 

court to invalidate the Trust Amendments on three grounds: Evelyn lacked 
12

capacity to make the amendments, she was unduly influenced in so doing, 

and the Trust Amendments did not reflect Evelyn’s overall intent. We 

disagree.

1. Standard of Review

“Appeals challenging an order granting a CCP § 631.8 defense motion 

for judgment in a nonjury trial are reviewed under the substantial evidence 

standard: Appellate courts defer to the trial court’s factual findings and will 

affirm so long as the findings are supported by ‘substantial evidence.’” 

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter 

Group 2022) ch. 8-C ¶ 8:150.) Where the judgment is based on the trial 

court’s finding that the plaintiff-appellant failed to meet her burden of proof, 

this standard requires the appellate court to determine “whether the 

evidence compels a finding in favor of appellant as a matter of law.” (Ibid., 

citing Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 732–733 (Eriksson).) 

Put differently, “‘the question becomes whether the appellant’s evidence was 

(1) “uncontradicted and unimpeached” and (2) “of such a character and 

weight as to leave no room for a judicial determination that it was 

insufficient to support a finding.”’” (Eriksson, at p. 733.) 

Diane contends that our review should be de novo because, according to 

Diane, the court’s statement of decision did not adequately explain the

decision’s factual and legal basis as to each principal controverted issue, as 

required by Code of Civil Procedure section 632. We conclude otherwise.

“A statement of decision need not address all the legal and factual 

issues raised by the parties. Instead, it need do no more than state the 

grounds upon which the judgment rests, without necessarily specifying the 

particular evidence considered by the trial court in reaching its decision.” 
13

(Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124–1125.) 

Here, the probate court summarized the relevant testimony. It observed that 

no testimony and no documentary evidence supported Diane’s incapacity, 

undue influence, and intent theories—i.e., all three of the theories Diane had 

pled in support of the sole cause of action at issue in the trial. The court also 

observed that document examiner Fisher’s testimony did not substantiate 

Diane’s allegation that Gerald’s copies of the Trust Amendments were 

inauthentic and concluded Diane had failed to prove inauthenticity. Finally, 

after discussing the law of capacity and undue influence, the court explained 

that the judgment in Gerald’s favor was based on Diane’s failure to meet her 

burden to prove her claims. This was enough to comply with Code of Civil 

Procedure section 632. (See Muzquiz v. City of Emeryville, supra, 79 

Cal.App.4th at p. 1125 [statement of decision need provide only “ultimate 

findings” not “evidentiary ones”].) Accordingly, our review here is for

substantial evidence.

7

2. Analysis

a. Capacity 

While different rules for capacity may apply to different trusts, the

parties agree, and we accept for sake of argument, that the capacity standard

7 We need not and do not address Gerald’s contention that Diane 

forfeited claims of deficiencies in the statement of decision and that this court 

should therefore apply the doctrine of implied findings. (See In re Marriage 

of Arceneaux (1990) 51 Cal.3d 1130, 1134.) The doctrine’s application is 

immaterial in light of our conclusion below that substantial evidence 

supported the probate court’s express findings that Diane failed to prove her 

claims.
14

most favorable to Diane applies.

8

 That standard is contained in sections 810

to 812. Under that standard, a person is presumed mentally capable of 

creating or amending a trust instrument unless the challenger can show 

(1) the person suffered from one of the listed mental deficits, and (2) there is 

a correlation between that mental deficit and the “decision or acts in 

question.” (§ 811, subd. (a).) The deficit must “significantly impair[] the 

person’s ability to understand and appreciate the consequences of his or her 

actions with regard to the type of act or decision in question.” (§ 811, subd. 

(b), italics added.) We also assume arguendo that upon a proper showing 

Civil Code section 39 would apply. As discussed above, that statute permits a 

court to find that a person lacks contractual capacity “if the person is 

substantially unable to manage his or her own financial resources or resist 

fraud or undue influence.” (Civ. Code, § 39, subd. (b).) 

Applying those standards, there is substantial evidence that Diane 

failed to prove lack of capacity. Attorney Kristof, who drafted the Trust 

Amendments and was present when Evelyn executed them, testified that she 

never had reason to doubt Evelyn’s capacity. Evelyn’s financial advisor 

similarly testified that he never had reason to question her capacity. To the 

contrary, he testified, she was very organized and understood all their tax 

discussions. 

8

A settlor’s capacity to amend a trust depends upon the complexity of 

the instrument and amendment at issue. For an amendment akin in 

complexity to a will, a settlor need only have capacity in the sense provided 

by section 6100.5, which applies to wills. But to be capable of making a more 

complex amendment, a settlor must have capacity in the sense provided by 

sections 810 to 812. (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 726–729.) 

Here, both parties’ appellate briefs assume that the standard more favorable 

for Diane, i.e., the standard of sections 810 to 812, applies. 
15

Diane argues that the court erroneously overlooked Evelyn’s hearing 

loss and behavior that Diane claims was symptomatic of OCD (regular 

gambling, extreme cleanliness, and refusal to keep food at home in favor of 

eating out). But there was no evidence that Evelyn’s hearing loss impacted 

her communications about the Trust Amendments. Nor was there evidence 

that Evelyn was diagnosed with OCD, much less that this alleged mental 

deficit—or any other—significantly impaired Evelyn’s ability to understand 

and appreciate the consequences of executing the Trust Amendments. And 

there was no evidence that the supposed OCD or any other mental deficit 

made Evelyn generally incapable of managing her own affairs or resisting 

fraud or undue influence. Thus, Diane’s evidence was insufficient to support 

a finding of incapacity, and certainly did not compel such a finding. (See 

§ 811, subd. (b); Civ. Code, § 39, subd. (b).) 

b. Undue Influence

“‘Undue influence’ means excessive persuasion that causes another 

person to act or refrain from acting by overcoming that person’s free will and 

results in inequity.” (Welf. & Inst. Code, § 15610.70, subd. (a); see also § 86 

[incorporating this definition of undue influence into the Probate Code].) In 

determining whether a result was produced by undue influence, the court 

must consider the vulnerability of the alleged victim, the alleged 

perpetrator’s actions and apparent authority, and the equity of the result. 

(Welf. & Inst. Code, § 15610.70, subd. (a).) “Evidence of the equity of the 

result may include . . . any divergence from the victim’s prior intent.” (Id., 

§ 15610.70, subd. (a)(4).) “Evidence of an inequitable result, without more, is 

not sufficient to prove undue influence.” (Id., § 15610.70, subd. (b).) “[I]n the 

context of a testamentary disposition of property by will or trust” undue 
16

influence means “‘pressure brought to bear directly on the testamentary act, 

sufficient to overcome the testator’s free will, amounting in effect to coercion 

destroying the testator’s free agency.’” (Lintz, supra, 222 Cal.App.4th at 

p. 1354.)

Here, substantial evidence supports the finding that Diane failed to 

prove undue influence. Diane presented no evidence that Evelyn was 

particularly vulnerable at the time she executed the Trust Amendments or 

that she did so as the result of excessive persuasion by Gerald, his mother, or 

his sisters. (See Welf. & Inst. Code, § 15610.70, subd. (a).) Indeed, Diane

presented no evidence of any conduct at all by the defendants that might 

have persuaded Evelyn to execute the amendments. Gerald’s mere promise 

to take care of Diane fell far short of compelling a finding that he improperly 

overcame Evelyn’s free will. (See ibid.) 

c. Intent

In their appellate briefs, the parties dispute whether—independent of 

incapacity or undue influence—a trust amendment may be invalidated on the 

ground that it deviated from the settlor’s intent. (See Ike v. Doolittle (1998) 

61 Cal.App.4th 51, 73 [“‘In construing a trust instrument, the intent of the 

trustor prevails and it must be ascertained from the whole of the trust 

instrument’”].) We need not and do not address this dispute. Even assuming

that Diane could, as a matter of law, introduce evidence relevant to Evelyn’s 

intent, the probate court reasonably concluded that Diane did not, in fact, 

introduce evidence that supported her position—she failed to prove that 

Evelyn intended to do anything other than dispose of her property in the 

manner reflected in the Trust Amendments.
17

To start, without a showing of incapacity or undue influence (which 

was not made here), Evelyn’s voluntary execution of the Trust Amendments 

supported a reasonable inference that the amendments conformed to Evelyn’s 

intent. Diane did not introduce evidence to undermine that inference. 

According to Kristof and the financial advisor, Evelyn’s purpose in executing 

the 2002 amendment was to ensure that Diane’s inheritance would not 

disqualify Diane from continuing to receive means-tested public benefits. 

Diane does not contend that the 2002 amendment did not realize that 

intention. Instead, she contends that Evelyn did not intend to confer 

discretion on the successor trustee to terminate the trust, even under the 

conditions specified in the 2002 amendment. But Diane produced no 

evidence suggesting that this was so. No evidence introduced at trial 

compelled a conclusion that Evelyn did not intend to confer trust-terminating 

discretion on the successor trustee. The probate court reasonably could have 

inferred that Evelyn conferred such discretion upon her sister, nephew, and 

other relatives intentionally, because doing so was consistent with Evelyn’s 

“unwavering trust” in those relatives to care for Diane. 

Thus, as to all three of Diane’s bases for challenging the Trust 

Amendments—lack of capacity, undue influence, and intent—substantial 

evidence supports the probate court’s findings that Diane did not prove her 

claims.

C. Diane’s Due Process Rights Were Not Violated

As we discuss above, in March 2017, Judge Barry signed an order 

overruling Gerald’s demurrer to Diane’s fourth amended petition, but at the 

same time directing that Diane’s second cause of action would not be 

adjudicated at trial. When the case was tried in July 2019, Judge Juárez
18

enforced the March 2017 order and barred Diane from litigating her second 

cause of action. Diane contends that enforcement of the March 2017 order 

violated her due process rights because: (1) the order failed to reflect Judge 

Barry’s ruling as previously stated in the judge’s oral comments and minute 

order; and (2) Diane received constitutionally inadequate notice of the order. 

We disagree on both counts.

First, Judge Juárez correctly viewed the March 2017 order signed by 

Judge Barry as the court’s ruling. Diane relies on prior comments made by

Judge Barry during the hearings in September 2016 and January 2017, as 

well as the minute order from the latter hearing. As we discuss above, 

however, in both September 2016 and January 2017, Judge Barry made clear 

that he did not intend to allow Diane to pursue her second cause of action in 

the probate proceeding. Moreover, during both the September 2016 and 

January 2017 hearings, Judge Barry expressly directed Gerald’s counsel to 

prepare a proposed order reflecting the court’s ruling. After Gerald’s counsel 

did so, rather than reject or modify the proposed order, Judge Barry adopted 

it by affixing his signature. The signed final order constitutes the court’s 

ruling, superseding any related oral comments and minutes. (See Jespersen 

v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633 [“a judge’s comments 

in oral argument may never be used to impeach the final order”]; Smith v. 

Smith (1941) 45 Cal.App.2d 212, 214 [minute entries authorizing subsequent 

orders were not themselves final orders: “After either minute entry had been 

made, the trial judge could have declined to sign an order carrying into effect 

the substance of the minute entry, on the ground that he had changed his 

mind and would in fact sign an order making opposite disposition of the 

motion before him”].)
19

Second, any deficiency in Diane’s notice of the March 2017 order did 

not violate her due process rights, because the alleged deficiency was wholly 

attributable to her own counsel’s failure. The California Rules of Court 

require an attorney or self-represented party whose mailing address changes 

while an action is pending to “serve on all parties and file a written notice of 

the change.” (Cal. Rules of Court, rule 2.200.) “‘[T]he “person to be served” 

has the burden of notifying the court of any change of address, and failure so 

to do does not enable him [or her] to claim improper notice.’” (Kramer v. 

Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 31.) 

Here, on March 15, 2017, by overnight mail, Gerald’s counsel served 

the proposed order later adopted by the court to the address of record for

Diane’s counsel. Diane’s counsel did not serve notice of a change of address 

until months later. She filed the notice with the court later still. Because 

this negligent omission caused any deficiency in Diane’s notice, Diane’s due 

process right to notice was not violated. (See Whitehead v. Habig (2008) 163 

Cal.App.4th 896, 903 [trial court did not violate defendants’ due process 

rights by entering default judgment upon defendants’ failure to appear at 

trial, where defendants’ ignorance of trial date was caused by their own 

failure to file notice of change of address]; cf. Kramer v. Traditional Escrow, 

Inc., supra, 56 Cal.App.5th at pp. 29–37 [trial court abused its discretion in 

granting defendants relief from default judgment, where defendants’ 

ignorance of plaintiff’s amended complaint was caused by their own 

negligence in, inter alia, failing to file notice of change of address].)

D. The Probate Court Acted Within Its Discretion in Admitting Gerald’s 

Copies of the Trust Amendments

Diane contends that the probate court abused its discretion when it 

admitted Gerald’s copies of the Trust Amendments into evidence without 
20

requiring Gerald to authenticate them under Evidence Code section 1402. 

Her argument is that because the document examiner, Fisher, offered an

opinion that Gerald’s copies of the Trust Amendments had been altered, 

Gerald’s separate authentication under section 1402 was required. We 

disagree. 

“Evidence Code section 1402 provides ‘[t]he party producing a writing 

as genuine which has been altered, or appears to have been altered, after its 

execution, in a part material to the question in dispute, must account for the 

alteration or appearance thereof.’” (People v. Hovarter (2008) 44 Cal.4th 983, 

1014, italics added.) Here, the statute’s condition precedent was not met. 

Diane produced no evidence that any alleged alteration was material. Fisher 

merely identified nontextual marks such as those left by staplers and hole 

punches. As the probate court observed, Fisher “could not say what 

substantive text portions, if any, of the Trust had been altered,” and “[n]one 

of Fisher’s opinions substantiated Petitioner’s argument that the Trust had 

been altered in any way that modified the substance of the Trust.” Because 

the alterations were not material to the issues in dispute, Gerald had no 

burden to account for them. (See Evid. Code, § 1402; People v. Hovarter, 

supra, 44 Cal.4th at p. 1014 [trial court acted within its discretion in finding 

copies of log sheets had been authenticated without requiring proponent to 

explain markings on copies that did not exist on originals, where markings 

were immaterial to parties’ dispute].)

Diane also argues that Gerald’s copy of the 2002 amendment could not 

be authenticated because attorney Kristof—the author of the amendment—

“disclaimed” a copy that she had produced. Again, we disagree. Diane relies 

on a single page from Kristof’s deposition transcript, which indicates only 

that Diane’s counsel showed Kristof an unidentified document, to which 
21

Kristof responded, “That’s not my document.” Nothing in the record 

identifies this document or otherwise supports Diane’s assertion that Kristof 

disclaimed the 2002 amendment’s authenticity.9

E. Diane’s Motion for Appellate Sanctions Is Denied

Diane moves for sanctions based on an issue with the record on appeal. 

We deny her motion.

On March 30, 2022, this court issued an order granting Gerald’s motion 

to borrow Diane’s copy of the record pursuant to California Rules of Court, 

rule 8.153. The order stated: “Respondent shall return the copy of the record 

to appellant when the respondent’s brief is filed.” On August 31, the 

respondent’s brief was filed. On September 20, Diane filed her reply brief.

On October 17, 2022, Diane moved for $20,790 in monetary sanctions 

against Gerald and/or his counsel. Diane argues that Gerald unreasonably 

violated California Rules of Court, rule 8.153 and this court’s March 30 order 

by failing to timely return Diane’s copies of the record in full. Diane further 

argues that the respondent’s brief was intentionally deceitful and deficient in 

its formatting and citations to the record, in violation of Code of Civil 

Procedure 128.7, unspecified ethical rules, and California Rules of Court, 

rule 8.204. 

9

Each of Diane’s appellate briefs includes a single citation to Evidence 

Code section 1523 (the secondary evidence rule), but neither brief articulates 

any argument applying this rule to the facts of this case. We conclude that 

Diane has forfeited any contention that the court admitted evidence in 

violation of the secondary evidence rule. (See Hernandez v. First Student, 

Inc. (2019) 37 Cal.App.5th 270, 277 [“We may and do ‘disregard conclusory 

arguments that are not supported by pertinent legal authority or fail to 

disclose the reasoning by which the appellant reached the conclusions he [or 

she] wants us to adopt’”].)
22

We decline to impose any sanctions. The exhibits to Diane’s motion 

include a September 2, 2022 email from Gerald’s counsel stating that his 

office had mailed the record the day after the respondent’s brief was filed, 

and that if there was any delay in the record’s return, he would not oppose a 

reasonable extension of Diane’s time to file a reply brief. Diane never sought 

such an extension. Thus, her conclusory assertion that she was prejudiced by

a delay appears meritless. Further, although Gerald’s counsel admittedly 

misplaced Diane’s copy of the third volume of the clerk’s transcript, there is 

no dispute that he provided Diane’s counsel with a replacement copy. Diane

identifies no omission from the replacement copy other than a single page, 

which appears to have been the first page of objections Diane filed in 

opposition to a motion that was decided years before trial and that has no 

obvious relevance to this appeal. Diane does not claim that this motion—

much less the single omitted page—is in any way material to her appellate 

contentions. We conclude that any noncompliance with California Rules of 

Court, rule 8.153 or this court’s March 30, 2022 order was de minimis. 

We further decline to impose any sanctions in connection with Gerald’s 

filing of the respondent’s brief. We have reviewed the brief and discern no

deficiencies that warrant the imposition of sanctions. Nor do we see any 

support for Diane’s speculative allegation that Gerald’s counsel intended to 

deceive this court. Further, Diane’s reliance on Code of Civil Procedure 128.7 

is misplaced, as that statute does not apply in the appellate courts. (Bryan v. 

Bank of America (2001) 86 Cal.App.4th 185, 197–199.) Accordingly, Diane’s

motion for sanctions is denied.
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DISPOSITION

The order granting Gerald’s motion for judgment is affirmed. Diane’s 

motion for sanctions is denied. Gerald is awarded his costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

DAUM, J.*

WE CONCUR:

CURREY, Acting P. J.

COLLINS, J.

*Judge of the Los Angeles Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.