Filed 4/19/23 Wohlberg v. Craig CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ANNE WOHLBERG,

Plaintiff and Appellant,

v.

CATHRYN CRAIG, as trustee, 

etc., et al.,

Defendants and 

Respondents.

 B313107

 (Los Angeles County

 Super. Ct. No. 19STPB03004)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Daniel Juarez, Judge. Affirmed.

James A. Rainboldt for Plaintiff and Appellant.

Donahoe Young & Williams, Mark T. Young and Taylor F. 

Williams-Moniz for Defendants and Respondents.
2

Anne Wohlberg (appellant) appeals from a judgment 

entered after the trial court granted summary judgment in favor 

of respondents Cathryn Craig, as Trustee of the Gene Wohlberg 

Irrevocable Trust dated August 27, 2018 (trust), and Michael 

Alan Wohlberg (collectively respondents) on appellant’s petition 

filed pursuant to Probate Code section 850 seeking to return 

property held in the trust.

Appellant has failed to show error; therefore we affirm the 

judgment.

BACKGROUND

The family

Appellant is the widow of decedent Gene Wohlberg. 

Appellant and Gene Wohlberg were married on June 25, 1978. 

Gene Wohlberg died on October 14, 2018. Appellant moved into a 

facility for those with Alzheimer’s disease or dementia on 

November 1, 2018.

Respondents are the biological son and daughter of Gene 

Wohlberg from a previous marriage. Ingrid Fields and Steven 

Wohlberg are also the biological offspring of Gene Wohlberg from 

a previous marriage. Kenneth Brookes and Nancy Dominguez 

are Anne Wohlberg’s biological children from a previous 

marriage.

The trust

The trust was created in August 2018 as a “Medi-Cal” trust 

“designed to allow Decedent to qualify for Medi-Cal health 

insurance benefits by placing a portion of Decedent’s and 

[appellant’s] assets in the [t]rust.” At the time the trust was 

created, decedent had “no expectations of dying and no terminal 

health conditions,” and “he was concerned that he and [appellant] 
3

would not have enough money to live out their retirement.” 

Craig testified that appellant was aware of the trust and was 

aware of what was going on at the time the trust was created. 

Appellant was present with decedent and discussed it on a 

number of occasions. Appellant also accompanied Craig to the 

bank to make deposits into the trust. Appellant was “aware and 

consented to the use of community assets to fund the [t]rust.” 

Craig testified: “This was not done lightly. This was 

conversations with her and [decedent] about what they were 

trying to accomplish because they knew that risk mitigation was 

kicking in and they had to do something because dad was not 

coming out of the facility any time soon. So this was a way to 

protect whatever money they had for the future.”

Appellant was “very well aware of what was going on” 

during the creation of the trust. Appellant was informed that “if 

[appellant and decedent] don’t do something to preserve these 

assets, if [decedent’s] condition stays, there won’t be any money 

left to do longterm care for him. A skilled nursing or at home is 

potentially thousands of dollars every month and there won’t be 

money left.” 

Jane McNamara, the California attorney who assisted 

decedent and appellant in setting up the trust, testified that 

“because of the trust and the Medi-Cal planning . . . , [decedent] 

was approved for Medi-Cal as of October 1. So there was a 

savings there. So every month that he went forward in living, 

Medi-Cal would have paid a substantial amount of the nursing 

home bill, the doctors, his Medicare premiums.”

In June 2018, at the decedent’s initial consultation with 

McNamara, decedent informed McNamara that appellant was in 

the “early/mid stages” of dementia. However, he never expressed 
4

any misgivings about appellant’s decisionmaking ability, except 

that she might be unduly influenced by her daughter. 

McNamara personally spoke with appellant about the creation of 

the trust. McNamara stated that she and appellant “talked 

about the irrevocable trust and why we were doing it that way 

and what was happening with it.” McNamara attested that it 

was decedent’s wish that appellant be taken care of, and “it was 

his belief that the irrevocable trust would preserve the assets so 

if he or [appellant] were in need, it would be of assistance . . . .” 

The idea was that there could be a distribution to one of the kids 

who would then assist appellant with her needs. Half of 

decedent’s community property funds were to be used for the 

irrevocable trust and for the retainer agreement. McNamara 

understood that appellant’s portion of the community property 

was not part of the Medi-Cal planning.

On August 27, 2018, Craig became the trustee of the trust. 

The trust directed that the decedent’s assets should be divided 

among decedent’s four children and appellant’s son, Kenneth 

Brookes. Appellant’s daughter, Nancy Dominguez, was 

specifically disinherited.1 Appellant is not a beneficiary of the 

trust. However, Craig testified that she understood that her 

obligation as trustee was to save the money for appellant. Craig 

stated, “this money was for [appellant’s] use. We have been 

trying to preserve that for her for a very long time. That’s what 

this is for is to help [appellant].” Craig confirmed, “[decedent’s] 

wishes were to have this money in the trust for [appellant] in 

four years when she needed it . . . and I was happy to—and 

1 Respondents represent that Nancy Dominguez was also 

disinherited in a previous joint trust dated October 2, 2017. 

However, the previous trust is not in the record.
5

Michael and Steven and Ingrid, we were happy to make sure to 

the best of our ability—that this money was here for her.” Craig 

testified that decedent had calculated that appellant had enough 

to live on for four years and that his children were directed to 

preserve the balance of the funds “to cover anything that she 

needed after that.”

The life insurance policy

Decedent also had a Genworth Life and Annuity Term Life 

Policy (policy), which had a benefit of approximately $135,000

upon decedent’s death. In or around November 2017, decedent 

told respondents that he had stopped making payments on the 

policy because the premium was too expensive. Decedent told 

respondents that if they paid to reinstate the policy and made its 

premium payments, decedent would change the beneficiary from 

appellant to respondents. As a result, on February 15, 2018, 

respondents paid to reinstate the policy and continued to make 

the required payments until decedent’s death.

Craig was present on March 5, 2018, when the beneficiary 

change form was signed by both decedent and appellant. 

Respondents had no reason to believe appellant did not sign the 

document knowingly and voluntarily. Decedent had not intended 

to keep the policy if respondents did not pay to keep it in effect.

PROCEDURAL HISTORY

On March 29, 2019, appellant filed a “Petition for Return of 

Property held in the Gene Wohlberg Irrevocable Trust Dated 

August 27, 2018” pursuant to Probate Code section 850 (petition). 

The petition named as respondents Craig, as trustee of the trust, 

and Michael Wolhberg. The petition alleged that in August 2018 

cash in the sum of $200,947.11 was transferred out of a 
6

community brokerage account, and appellant did not consent to 

the transfer. It was alleged that the trust now holds these funds. 

Through the petition, appellant requested return of the full 

amount of these funds. The petition alleged that the trust was 

created without her “involvement, consent or knowledge.” The 

petition further alleged that respondents changed decedent’s life 

insurance policy for which appellant was the beneficiary. 

Appellant demanded that respondents return all funds to her and 

all life insurance proceeds that were paid to respondents, the 

trust or any other family members.

On May 16, 2019, respondents filed objections to the 

petition. Respondents stated that appellant was informed and 

consented to the use of marital funds to fund the trust and was 

aware of, and consented to, the change of beneficiaries on the life 

insurance policy. Respondents asserted that appellant “is not of 

sound mind” and was diagnosed with early onset Alzheimer’s 

disease sometime in 2018.2 Respondents also asserted that “at 

the time of the [t]rust’s creation, [appellant was] fully aware of 

the benefits to her then husband and the resulting reduction in 

assets she might inherit after her husband’s death.” 

Respondents asked that appellant’s petition be denied.

On July 28, 2020, respondents filed their motion for 

summary judgment along with a separate statement and 

appendix of evidence in support of the motion. In the motion, 

respondents argued that there was no evidence in support of 

appellant’s assertions that marital property had been 

2 Upon review of appellant’s medical records, respondents 

corrected this allegation in the motion for summary judgment, 

confirming that appellant had been diagnosed with dementia in 

2019.
7

misappropriated. Appellant objected to being deposed in the 

matter because she “lack[ed] the capacity to recollect events 

pertinent to this action” and had “diminished capacity.” Her son 

Kenneth Brookes acted as her attorney-in-fact. Brookes admitted 

that he has no present knowledge of any of the allegations in the 

petition, was unaware of appellant’s mental state at any time 

relevant to the proceedings, and had no involvement with 

appellant’s or decedent’s estate planning or financial affairs.

Appellant filed an opposition to the summary judgment 

motion on December 7, 2020. Appellant filed an appendix of 

evidence in support of her opposition, including a declaration of 

James Randy Mervis, M.D. Mervis reviewed appellant’s medical 

records and concluded with a “reasonable degree of medical 

certainty” that she was suffering from progressive dementia that 

precluded her from having the ability to understand signing the 

life insurance change of beneficiary in March 2018 and 

irrevocable trust in August 2018.

On December 11, 2020, respondents filed a reply brief. 

Among other things, respondents argued that appellant could not 

allege new facts in opposition to summary judgment to create a 

triable issue of fact. Respondents also argued that expert 

opinions acquired after the fact to oppose a motion for summary 

judgment do not create triable issues of fact.

On January 4, 2021, the trial court issued a minute order 

granting respondents’ motion for summary judgment. The court 

noted that the evidence “uniformly” contradicted appellant’s 

allegations that community property assets were wrongly used to 

create the trust and that respondents improperly changed the 

beneficiary on the policy at issue. The policy beneficiary change 

form was signed by appellant and copies of checks showing 
8

withdrawals showed she took an active role in funding the trust. 

The court noted that while appellant asserted for the first time in 

opposition to summary judgment that she lacked capacity to 

agree or was the victim of undue influence, that such new 

theories were not properly raised for the first time in opposition 

to summary judgment. While appellant sought to amend her 

pleadings, the court cited Distefano v. Forester (2001) 85 

Cal.App.4th 1249, 1264-1265 (Distefano) for the proposition that 

“‘[i]f the opposing party’s evidence would show some factual 

assertion, legal theory, defense or claim not yet pleaded, that 

party should seek leave to amend the pleadings before the 

hearing on the summary judgment motion.’”

The court’s order granting summary judgment and denying 

appellant’s petition with prejudice was entered on March 11, 

2021. 

On May 12, 2021, appellant filed her notice of appeal from 

the judgment.

DISCUSSION

I. Standard of review

When reviewing a trial court’s order granting summary 

judgment, we independently examine the record to determine 

whether triable issues of fact exist. (Wiener v. Southcoast 

Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) 

The initial burden is on the moving party to establish that the 

opposing party cannot establish one or more elements of the 

cause of action. After the moving party makes such a showing, 

the burden then shifts to the opposing party. (Ibid.)

In performing the de novo review, we view the evidence in 

the light most favorable to the losing party. We liberally 
9

construe the opposing party’s evidence, in order to resolve any 

evidentiary doubts in that party’s favor. (Wiener, supra, 32 

Cal.4th at p. 1142.) Our review is limited to “the facts contained 

in the documents presented to the trial court.” (Torres v. 

Reardon (1992) 3 Cal.App.4th 831, 836.) We undertake the 

following three-step analysis: “We first identify the issues framed 

by the pleadings, since it is these allegations to which the motion 

must respond. Secondly, we determine whether the moving party 

has established facts which negate the opponents’ claim and 

justify a judgment in the movant’s favor. Finally, if the summary 

judgment motion prima facie justifies a judgment, we determine 

whether the opposition demonstrates the existence of a triable, 

material factual issue.” (Ibid.)

II. Summary judgment was properly granted

As the trial court noted, appellant’s petition was unclear as 

to the theory under which she sought relief. She asserted that 

the sum of $200,947.11 was transferred from a community 

property account to the trust without her consent. She requested 

return of the funds in the full amount. She asserted that the 

trust was created without her “involvement, consent or 

knowledge.” Appellant further alleged that prior to Gene 

Wohlberg’s passing, respondents changed a life insurance policy 

for which appellant was the beneficiary, naming themselves as 

beneficiaries. Appellant demanded that the life insurance 

proceeds be returned to her.

There is no evidence that the transfers in question were 

done without appellant’s consent or knowledge. To the contrary, 

all evidence shows that appellant was involved, consented, and 

had knowledge of the transactions.
10

As to the creation of the trust, there is documentary 

evidence in the form of checks signed by appellant showing that 

she took an active role in funding the trust.3 Testimony on the 

subject comes from Craig, who testified that appellant was “very 

well aware” of what was going on with the creation of the trust. 

In addition, McNamara, the attorney who helped decedent create 

the trust, testified that she had discussions with appellant 

regarding the creation of the trust and that appellant was aware 

of what was going on. There is no evidence to the contrary.

As to the change of beneficiaries on the life insurance 

policy, appellant’s consent is documented by her signature on the 

policy beneficiary change form. Craig was present when 

appellant signed the form. There is no evidence that appellant 

was unaware or did not consent to the change. On the contrary, 

the only evidence in the record, which was obtained from

respondents, was that appellant and decedent could no longer 

afford to pay the premiums on the policy and it was in danger of 

lapsing. Decedent therefore offered to change the beneficiary of 

the policy if respondents paid the premiums.

3 Appellant notes that the checks funding the trust signed by 

Gene Wohlberg were made out to “Cathryn Craig, Trustee of the 

Gene Wohlberg Irrevocable trust dated 8/27/18” while the checks 

funding the trust signed by appellant were made out to “Cash.” 

This alone is insufficient to create a triable issue of fact as to 

appellant’s consent. The checks were all for the same amount 

and were made from the same account within a few weeks after 

the creation of the trust. There is no indication in the record that 

appellant was being deceived as to the purpose of the checks. 

Craig provided the only testimony on the subject. She stated that 

appellant knew the checks were for the trust. There is no 

evidence to the contrary.
11

In sum, there was no evidence in the record to support 

appellant’s contentions that the act of creating the trust and the 

act of changing the beneficiary on the life insurance policy was 

done without her involvement, consent or knowledge.

III. The court properly declined to consider new theories 

raised in opposition to summary judgment

Following submission of respondents’ motion for summary 

judgment, appellant asserted new theories that appellant “lacked 

capacity or was the subject of undue influence.” The trial court 

properly declined to consider such new theories because they 

were raised for the first time following respondents’ motion for 

summary judgment. (Distefano, supra, 85 Cal.App.4th at p. 1264 

[“To create a triable issue of material fact, the opposition 

evidence must be directed to issues raised by the pleadings.”].)

Appellant takes issue with this ruling, asserting that 

appellant’s allegation that the trust was created without her 

“involvement, consent or knowledge” necessarily raised her 

present contentions surrounding her mental capacity and 

excessive persuasion.4 We disagree that allegations regarding 

appellant’s competence may be implicitly found in the pleading. 

There is a rebuttable presumption that “all persons have the 

capacity to make decisions and to be responsible for their acts or 

4 Appellant represents that Probate Code section 850—the 

statute under which the petition was brought—generally 

concerns minors and conservatees, both of whom lack capacity. 

We disagree with appellant’s characterization of the statute as 

necessarily involving an individual that lacks capacity. Probate 

Code section 850 is a general provision specifying who can file a 

petition requesting that the court make an order and does not 

specifically deal with issues of impairment.
12

decisions.” (Prob. Code, § 810, subd. (a).) In the absence of 

specific allegations that appellant lacked such capacity, 

respondents had no reason to respond to such a premise. 

Respondents were entitled to rely on the allegations of the 

pleadings in preparing their summary judgment motion.5

Appellant also asserts on appeal that respondents were 

acting as fiduciaries to appellant during the time that the 

transactions were carried out. Significantly, the existence of a 

fiduciary relationship was not alleged in the petition, nor did 

appellant allege a breach of fiduciary duty by respondents. 

However, even if she had made such allegations, the evidence 

does not support such a claim.

Appellant cites Barrett v. Bank of America (1986) 183 

Cal.App.3d 1362, 1369, for the proposition that “[c]onfidential 

and fiduciary relations are in law, synonymous and may be said 

to exist whenever trust and confidence is reposed by one person 

in another.” There is no evidence in the record that respondents 

were acting in such a capacity towards appellant.6 Craig testified 

5 Appellant also argues that because, in their objections to 

appellant’s petition, respondents raised the issue of appellant’s 

mental incapacity, respondents themselves have introduced this 

issue as a triable issue of fact. Respondents’ assertion as to 

appellant’s present state of mind are not relevant to the 

allegations in the petition that the transactions were undertaken 

without appellant’s consent or knowledge. They do not serve to 

raise a triable issue of fact as to appellant’s mental state at the 

time of the transactions at issue.

6 Craig agrees that she became a fiduciary as trustee of the 

trust on August 27, 2018. However, Craig’s role as trustee of the 

trust does not include a fiduciary duty to appellant, who is not a 

beneficiary of the trust.
13

that she regularly communicated with decedent about many 

aspects of his life, including his financial affairs. Michael 

Wohlberg also stated that he had a close relationship with 

decedent and communicated with him regularly regarding many 

areas of his life, including his financial affairs. However, neither 

of the respondents provided any testimony or other evidence 

suggesting that they were acting in a fiduciary capacity towards 

either decedent or appellant. The evidence showed that decedent 

relied on an attorney in creating the trust. Appellant’s assertions 

that respondents owed her a fiduciary duty are not legally 

supportable.

Based on the faulty premise that respondents owed her a 

fiduciary duty, appellant asserts that respondents were required 

to provide her with full and fair disclosure of the financial 

transactions that took place prior to Gene Wohlberg’s death. She 

also asserts that undue influence is presumed under such 

circumstances, and gifts to a fiduciary are presumptively void. 

We decline to address these assertions in detail, as they were not 

raised in the petition, and the record does not support them.

Appellant further argues that under Family Code section 

721 there is a rebuttable presumption of undue influence when 

one spouse gains an advantage over the other. As set forth 

above, appellant never alleged undue influence in her petition, 

nor did she assert a violation of Family Code section 721. 

Although it is unclear what specific transaction appellant is 

referring to with respect to Family Code section 721—the 

creation of the trust was designed to protect the assets of 

appellant and decedent in allowing decedent to qualify for MediCal, which it did. There is no suggestion of undue influence in 

the facts established by the evidence.
14

Appellant cites Family Code section 1100, subdivision (b), 

which provides that a spouse “may not make a gift of community 

personal property, or dispose of community personal property for 

less than fair and reasonable value, without the written consent 

of the other spouse.” Appellant asserts that there is no evidence 

of compliance with Family Code section 1100, subdivision (b) with 

respect to the money transferred into the trust or the elimination 

of appellant’s status as beneficiary of the life insurance policy. 

Appellant apparently takes the position that these transactions 

constituted gifts to respondents. Again, appellant did not raise 

this theory in her petition or at any time prior to summary 

judgment. Further, there is no evidence to suggest that any of 

the transactions violated this section. Appellant provided her 

written consent for the replacement of the beneficiary on the life 

insurance policy, and she participated in the creation of the trust, 

which was for her benefit. There is no evidence that it was 

created as a gift to respondents.

Appellant argues that the trial court implicitly considered 

appellant’s mental state while refusing to consider her incapacity 

to agree to the funding of the trust and the change of beneficiary 

on the insurance policy. Appellant points out that the trial court 

stated in its written minute order: “The documentary evidence 

uniformly contradicts [appellant’s] allegations and her own 

written responses show that she is ‘not aware’ or does not recall 

the circumstances surrounding the creation and funding of the 

trust.” Thus, appellant argues, while the trial court observed 

that appellant was not aware or could not recall these 

transactions, such conditions are consistent with her present 

assertions of mental incapacity and undue influence.
15

Appellant never alleged that she had an impaired mental 

state at the time of the transactions in question or was the victim 

of undue influence. Nor did she request leave to file an amended 

petition at any time leading up to the filing of respondents’ 

motion for summary judgment. The trial court noted that 

appellant was unable to provide evidence in this matter due to 

her inability to recall. Her present incapacity does not cure the 

absence of such allegations from the petition, nor does it require 

the court to assume that she lacked capacity at the time the 

transactions took place.

IV. The court properly found that appellant’s expert 

evidence raised for the first time in opposition to 

summary judgment did not create a triable issue of 

fact

Appellant next asserts that the trial court improperly 

declined to find a triable issue of fact based on the expert opinion 

evidence submitted by appellant’s expert, Dr. Mervis.

The trial court found that respondents correctly argued 

that expert opinions acquired after the fact to oppose a motion for 

summary judgment do not create a triable issue of material fact. 

The court cited Serri v. Santa Clara University (2014) 226 

Cal.App.4th 830 (Serri) in support of this decision, quoting the 

opinion for the general proposition that “expert opinions acquired 

after the fact to oppose a motion for summary judgment do not 

create a triable issue of material fact.” Appellant argues that the 

trial court misinterpreted Serri, broadly construing the case to 

dismiss all expert evidence acquired after the events forming the 

basis of the litigation.

We agree with appellant that the Serri decision does not 

rule out the relevance of all expert testimony based on the date of 
16

its acquisition. In Serri, an individual brought an action against 

her former employer (the University) and others for wrongful 

discharge based on race and ethnic origin, among other claims. 

(Serri, supra, 226 Cal.App.4th at p. 837.) The University moved 

for summary judgment or summary adjudication on all her 

causes of action. (Ibid.) The trial court granted summary 

judgment in favor of the University. On appeal, the court was 

asked “to determine whether an employee who is terminated for 

failing to perform an important job function can avoid summary 

judgment by arguing, based on expert evidence obtained for the 

purpose of opposing a motion for summary judgment or summary

adjudication, years after the employee’s termination, that the 

failure to perform did not and would not result in any adverse 

consequences to the employer.” (Id. at p. 838.) Under those 

circumstances, the Serri court found that the “after-acquired

expert evidence that there were no adverse consequences from an 

employee’s failure to perform does not create a triable issue of 

fact on the question whether the employee failed to perform his 

or her job duties and thus has limited relevance, if any, to the 

question of discrimination.” (Ibid.) Specifically, the evidence was 

not relevant to the issues in the case—“whether the University’s 

stated reasons for terminating [the employee] were untrue or 

pretextual such that a reasonable trier of fact could conclude that 

the employer engaged in discrimination.” (Ibid.)

Thus, the Serri court analyzed the expert evidence and 

considered whether such evidence was relevant to the issues in 

the case and whether it served to create a triable issue of 

material fact on such issues. We conduct the same analysis as to 

the expert evidence at issue here.
17

Dr. Mervis’s declaration is not relevant to any issues in the 

case because appellant did not raise the issue of her mental 

health or undue influence at any time prior to the filing of 

respondents’ motion for summary judgment. As set forth above, 

new theories may not be raised for the first time in opposition to 

summary judgment. (Distefano, supra, 85 Cal.App.4th at

p. 1264.) As in Serri, the expert opinion offered in opposition to 

summary judgment is not relevant to the issues in the case. 

(Serri, supra, 226 Cal.App.4th at p. 838.)

V. Leave to amend or supplement the petition was 

properly denied

Appellant asserts that on a first demurrer, it is an abuse of 

discretion to deny a party leave to amend. (Citing Kolani v. 

Gluska (1998) 64 Cal.App.4th 402, 412; McDonald v. Superior 

Court (1986) 180 Cal.App.3d 297, 303-304.) Both cases appellant 

cites in support of her claim that she should have been granted 

leave to amend involve demurrers, not summary judgment

proceedings. As this matter was decided on summary judgment, 

the cases are unhelpful to appellant.

Parties are not permitted to change their theory in 

opposition to summary judgment. “The complaint is supposed to 

set forth the plaintiff’s proposed case, which the defendant’s 

summary adjudication motion then aims to test as a matter of 

law. But if the plaintiff’s opposition moves the factual target 

after the defendant has fired off its motion, this unfair tactic 

defeats the utility of the procedure.” (Cohen v. Kabbalah Centre 

Internat., Inc. (2019) 35 Cal.App.5th 13, 18.) For this reason, 

opposition evidence must be directed to issues raised by the 

pleadings. (Distefano, supra, 85 Cal.App.4th at p. 1264.) If the 

opposing party wants to present a theory or claim not yet 
18

pleaded, that party should seek leave to amend before the 

hearings on the summary judgment motion. (Id. at pp. 1264-

1265.) Appellant did not do so.

Appellant relies on FPI Development, Inc. v. Nakashima 

(1991) 231 Cal.App.3d 367 (FPI) for the proposition that she 

should be permitted to supplement her petition through her 

separate statement in opposition to summary judgment. We note 

that the FPI court affirmed summary judgment for the plaintiff 

in spite of the defendants’ attempt to assert new theories in 

opposition to summary judgment. (Id. at pp. 402-403.) In doing 

so, the FPI court allowed that “some defects in the pleading of an 

ultimate fact may be remedied by resort to a factual showing in 

the summary judgment proceeding. In this manner the pleadings 

may be read together with the factual showings in the summary 

judgment proceeding for purposes of discerning what is in issue.” 

(Id. at p. 382.) However, the FPI court acknowledged that “the 

doctrine of theory of trial permits a variance in proof, the scope of 

which is ordinarily dependent upon what is pled.” (Id. at p. 385.) 

In other words, even allowing for variance from the pleadings, 

the pleading must “minimally advise the opposing party of the 

nature of the defense even if defective as conclusory.” (Ibid.) 

Only “[i]f the allegations . . . gave notice to the plaintiffs of a 

potentially meritorious [claim or] defense, [the appealing party 

is] likewise entitled to reversal of the summary judgment.” 

(Ibid.) If the appealing party fails this test, we must affirm the 

judgment. (Ibid.)

Appellant’s pleading did not give notice to respondents that 

she was putting her mental capacity at the time of the 

transactions at issue. Nor did the pleading give respondents 

notice that appellant was claiming undue influence. We conclude 
19

that the trial court did not err in declining to permit appellant 

leave to amend or allow appellant’s separate statement to 

supplement her pleading.

DISPOSITION

The judgment is affirmed. Respondents are awarded their 

costs of appeal.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.