Filed 1/25/22 Burns v. Fitzgerald CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TERRANCE BURNS et al.,

Plaintiffs and Respondents,

v.

PATRICK FITZGERALD,

Objector and Appellant.

 D078564

 (Super. Ct. No. 37-2017-

00044744-PR-TR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Jeffrey B. Barton, Judge. Affirmed.

Greenberg Traurig, Scott D. Bertzyk and Karin L. Bohmholdt for 

Objector and Appellant. 

Henderson, Caverly, Pum & Trytten, Kristen E. Caverly and Lisa B. 

Roper for Plaintiffs and Respondents, Terrance Burns and Margaret 

Rasmussen. 

INTRODUCTION

This appeal arises from a dispute between the heirs of Terence

Fitzgerald and the heirs of his wife, Barbara Fitzgerald, regarding the 

characterization of shares of stock in a company formed during the course of 
2

their marriage. Barbara’s heirs asserted the stock was community property 

and filed a petition to recover assets, including, among others, a one-half 

interest in the stock. Following a bifurcated trial on stipulated issues

concerning the characterization of the stock, the trial court issued a 

statement of decision and order characterizing the stock as community 

property. 

Terence’s son, Patrick Fitzgerald (Patrick), appeals from the order and 

asserts, as he did in the trial court, that the stock was Terence’s separate 

property based on a Premarital Agreement (PMA) executed by Terence and 

Barbara. In addition, Patrick asserts the trial court erred by denying a 

motion in limine and allowing Barbara’s siblings and heirs, Margaret 

Rasmussen and Terrance Burns (Terry) (together, Respondents),1 to change 

theories after the close of discovery to assert the stock was not covered by the 

PMA. Respondents contend the trial court’s order is not appealable because 

it is not a final order and ask us to dismiss the appeal. 

We conclude the order is appealable but find no error in the trial court’s 

evidentiary ruling or its conclusion that the stock was community property. 

We therefore affirm the order. 

FACTUAL AND PROCEDURAL BACKGROUND2

Terence and Barbara were married in 1992. Terence had five children 

from a previous marriage—Paul Fitzgerald, James Fitzgerald, Elizabeth 

MacDonald, Kathleen Fitzgerald, and Patrick—who would later become his 

1 As we later discuss, Barbara had a third sibling, David Burns, who is 

also an heir to her portion of the estate, but he subsequently withdrew from 

the petition and is not a party to the present appeal.

2 The following factual summary is taken primarily from the parties’ 

written stipulation of facts entered into evidence at trial.
3

heirs (collectively, Terence’s heirs). Barbara did not have any children, but

did have three siblings—Margaret, David, and Terry—who would later 

become her heirs (collectively, Barbara’s heirs).

Terence and Barbara executed a PMA prepared by Terence’s attorney. 

The PMA states, “all property owned by either of them at the time of the 

marriage shall remain each party’s separate property,” and includes a list of 

each party’s separate property. The list of Terence’s separate property

includes, among other items, a 401(k) retirement plan and “[m]iscellaneous 

employment benefits,” but does not include any right to purchase stock or 

otherwise obtain ownership in any company.

The PMA also addresses income earned during the marriage. Under

the heading “COMMUNITY PROPERTY,” it states: “All earned income of 

either party during the marriage, including but not limited to all times when 

the parties are living together as husband and wife, from any source, shall be 

the separate property of that party. This shall include any employment 

benefits accruing during marriage, including but not limited to, 401K 

contributions, pensions, stock options, and the like.” It provides that the 

parties “may establish a joint account to meet their common expenses” and 

“funds deposited into the joint account shall become community property.” 

Further, “[a]ll assets acquired during marriage in the joint names of the 

parties, to the extent there are title documents, shall be community property, 

except that the parties may take title to property specifying unequal interests 

held by each party.”

Before and at the time of marriage, Terence was the president of

PAFCO Importing Company, Inc. (PAFCO), a food importing subsidiary of 
4

Foodbrands America, Inc. (Foodbrands).3 However, by late 1995, Foodbrands 

had decided to liquidate PAFCO and was discussing both a severance 

package and a potential purchase of the PAFCO assets with Terence. 

In March 1996, approximately four years into the marriage, Terence 

and business partner David Sjostrom (Sjostrom) formed F&S Acquisition 

Company (F&S) to acquire the assets of PAFCO. Each contributed $25,000 

in exchange for 25,000 shares of common stock and, on April 18, 1996, F&S 

issued stock certificates to Terence and Sjostrom reflecting their respective

shares. F&S also executed a promissory note in favor of Terence. Concurrent 

with the transaction, and also on April 18, 1996, Terence and Barbara signed 

a “DECLARATION ACKNOWLEDGING AND IDENTIFYING 

COMMUNITY PROPERTY”(the Declaration), in which they acknowledged: 

“[A]ll interest in F & S . . . held in the name of Terence S. Fitzgerald is held 

as such for convenience only, and is in fact our community property” and “all 

amounts loaned to the company to date by Terence S. Fitzgerald constitute 

our community property.”4 (Italics added.)

F&S subsequently acquired assets from PAFCO, including the rights to 

the PAFCO name, and changed its name to PAFCO Importing Company, 

3 According to Patrick, Terence formed PAFCO, along with Patrick’s 

grandfather, sometime around 1980, but later relinquished ownership. It is 

undisputed that Terence did not own PAFCO at the time of Terence and 

Barbara’s marriage. 

4 The record suggests Terence entered into a separate severance 

agreement with Foodbrands around the same time, but the agreement was 

not entered into evidence at trial.
5

Inc.5 Terence was the president of F&S and was also on the board of 

directors, along with Sjostrom and another individual, Robert Cook. In 

February 1997, Sjostrom resigned and Barbara was elected as a director in 

his place. She also took on the role of Vice President. For the next 17 years, 

until the time of Barbara’s death, Terence and Barbara served as directors 

and as President and Vice President of F&S, respectively. 

In December 1998, Terence and Barbara created “The Terence and 

Barbara Fitzgerald Trust” (the Trust). The Trust documents were prepared 

by the same law firm as the F&S formation documents. The Trust stated, 

“[a]ny community property transferred to the trust shall remain community 

property after its transfer.” It further provided that, upon the death of either 

Barbara or Terence, the Trust was to be divided “into three separate trusts, 

designated the ‘Survivor’s Trust,’ the ‘Exemption Trust,’ and the ‘Marital 

Trust.’ ” The Survivor’s Trust was to include “the Surviving Settlor’s interest 

in the Settlors’ community property” and the remainder was to be split 

between the Exemption Trust and the Marital Trust in accordance with 

certain federal estate tax thresholds. Upon the death of the Surviving 

Settlor,the Survivor’s Trust was to be distributed to the heirs of the 

Surviving Settlor and the Exemption and Marital Trusts were to be combined 

and distributed to the heirs of the other, previously deceased spouse. 

Schedule A to the Trust identified all shares of F&S common stock as 

community property and identified the promissory note payable to Terence as 

Terence’s separate property. Concurrent with the funding of the Trust, F&S 

cancelled the certificate in the name of Terence and issued a new certificate 

5 For ease of reference, and to distinguish the different corporate 

entities, we will continue to refer to the company formed by Terence and 

Sjostrom in 1996 as F&S. 
6

to “ ‘Terence S. Fitzgerald and Barbara Burns Fitzgerald, as Trustees of the 

Terence and Barbara Fitzgerald Trust u/t/d 12.15.98.’ ” Terence also 

assigned the promissory note that F&S had issued to him to the Trust.6

In 2007, a different attorney, Peter Moye, prepared an “Amended and 

Restated Terence and Barbara Fitzgerald Trust” (the Restatement). 

Although somewhat more complex, the Restatement retains the same basic 

structure with distribution of assets through the three separate trusts upon 

the death of both spouses and does not materially change the treatment of 

the couple’s community property. Moye testified at trial by deposition and 

said that he received a copy of Schedule A from the original Trust and that 

Terence and Barbara reported nothing had changed, so he used the same 

Schedule A for the Restatement.

Barbara died in September 2014. Terence served as the sole trustee of 

the Trust after Barbara’s death, and Moye served as the trust administration 

counsel. Terence made cash gifts of $15,000 to each of Barbara’s siblings in 

accordance with instructions in the Restatement but did not otherwise give 

notice to Barbara’s heirs of any of the resulting trusts. According to 

Barbara’s heirs, Terence did not fund the Exemption Trust as required by the 

trust documents.

Terence died in July 2017. Terence’s daughter Elizabeth and Barbara’s 

brother Terry became Co-Trustees of the Trust. In November, Terry filed a 

petition, as co-trustee, seeking an order characterizing the F&S stock as 

community property and instructing the co-trustees to fund the Exemption 

Trust with one half of the community property, among other relief. Barbara’s 

6 The couples’ respective property rights in the promissory note are not 

at issue on appeal. 
7

other heirs joined the litigation, and, in November 2018, they filed another

petition pursuant to Probate Code sections 850, 17200, and 17206, seeking

recovery of assets that should have been administered to the Exemption 

Trust, including the F&S stock, or, in the alternative, damages for the failure 

to properly fund the Exemption Trust, as well as an injunction freezing the 

assets until the underlying issues were resolved. Patrick filed a response and 

objections to the petition.7

F&S was liquidated and wound down beginning in the fall of 2018. The

proceeds were held by the co-trustees and the parties subsequently stipulated 

to a bifurcated trial on the following two limited issues: 1) whether the F&S 

stock was community property or the separate property of Terence; and 2) if 

it was community property, the date upon which the Exemption Trust’s 50

percent interest should be valued for purposes of funding.

Following the bifurcated trial, the trial court issued a statement of 

decision resolving the two issues. The court found that F&S was formed 

during the marriage and, concurrent with its formation, Terence and Barbara 

signed the Declaration acknowledging the stock was their community 

property. Regarding the PMA, the court found “the term ‘employment 

benefits . . . and the like’ [was] vague and ambiguous”; the PMA was “silent 

regarding the character of property acquired during marriage that [was] not 

earned income, not employment benefits and not ‘in the joint names of the 

parties’ ”; and the list of Terence’s separate property did not reflect “any stock 

options, rights to purchase assets from his employer or entity ownership.” 

The court concluded that property acquired during marriage was 

7 The record indicates Elizabeth remains the co-trustee for Terence’s 

heirs, but none of Terence’s other heirs joined in the objections, or the present 

appeal. 
8

presumptively community property, and that Patrick failed to rebut the 

presumption. The court therefore characterized the F&S stock as community 

property, and ordered that the value for purposes of funding the Exemption 

Trust should be calculated as of the date of Barbara’s death.8

The court issued an order characterizing the stock as community 

property and Patrick timely appealed.

DISCUSSION

I.

Appealability

Before turning to the merits, we first address Respondents’ pending 

motion to dismiss the appeal. Respondents assert the order characterizing 

the F&S stock as community property is not an appealable “final order”

because it does not resolve all issues in the underlying petition. We disagree. 

An appeal may be taken from any order made appealable by the 

Probate Code. (Code Civ. Proc., § 904.1, subdivision (a)(10).) Appealable 

orders are set forth in Probate Code sections 1300 through 1304. Probate 

Code section 1300, subdivision (k), provides that an appeal may be taken 

from an order “[a]djudicating the merits of a claim made under Part 19 

(commencing with Section 850) of Division 2.” Probate Code section 850,

subdivision (a)(3)(B), in turn, allows a trustee to file a petition requesting 

that the court make an order “[w]here the trustee has a claim to real or 

personal property, title to or possession of which is held by another.” Probate 

Code section 1304, subdivision (a), further provides that an appeal may be 

taken from any “final order” made pursuant to Probate Code section 17200, 

with the exception of orders compelling an accounting or accepting the 

8 The date of valuation is not at issue on appeal. 
9

resignation of a trustee. Probate Code section 17200, in turn, provides that a 

trustee or beneficiary of a trust may petition the court for orders concerning

the internal affairs of the trust, which includes, but is not limited to, orders

“[a]scertaining beneficiaries and determining to whom property shall pass or 

be delivered upon final or partial termination of the trust, to the extent the 

determination is not made by the trust instrument.” (Prob. Code, § 17200, 

subds. (a), (b)(4).) 

Here, Barbara’s heirs filed a petition pursuant to Probate Code sections

850, 17200, and 17206, and asserted they had a claim to property—the F&S 

stock—that was improperly withheld from the Exemption Trust. The court 

adjudicated the merits of that claim when it determined the F&S stock was 

community property such that Barbara’s heirs did, in fact, have an interest in 

the stock. Moreover, the order effectively determined to whom the shares 

should pass upon termination of the Exemption Trust. Therefore, the order 

was appealable in accordance with both Probate Code section 1300, 

subdivision (k) and Probate Code section 1304, subdivision (a). 

Respondents, however, assert the order was not a final order because it 

did not resolve all issues in the petition and did not determine the exact 

dollar amount to be recovered by the Exemption Trust or Barbara’s heirs.

Respondents rely primarily on civil cases discussing the one final judgment 

rule but, here, the order is made appealable not because it is a final 

judgment, but by application of statutes specifically making certain orders of 

the probate court appealable. (See Code Civ. Proc., § 904.1, subds. (a)(1),

(10); Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1124–1125 [explaining 

the difference between final orders under section 1304 and a final 

judgment].)
10

Further, in this context, we look to the order itself, and its legal effect, 

as opposed to the underlying petition, when determining whether the order is 

appealable. “[W]hen an order that might not otherwise be appealable 

‘expressly or implicitly decides other issues that could be the subject of an 

appealable probate order,’ the order is appealable.” (Gridley v. Gridley (2008) 

166 Cal.App.4th 1562, 1586; see also Estate of Miramontes-Najera (2004) 118 

Cal.App.4th 750, 755 [“it is well established that a probate order’s 

appealability is determined not from its form, but from its legal 

effect”].) Although it does not resolve all claims at issue in the petition, the 

order does resolve finally the claims of Barbara’s heirs regarding their 

entitlement to a community property interest in the F&S shares. 

The order is appealable and we therefore deny Respondents’ motion to 

dismiss the appeal. 

II.

The Trial Court Did Not Err by Characterizing the F&S Stock

as Community Property

Turning to the merits, Patrick’s primary contention on appeal is that

the F&S stock was Terence’s separate property. He contends Terence started 

PAFCO and served as its president for years before the marriage, and that 

the acquisition of the PAFCO assets was a “benefit[ ]” of that employment, 

such that it was Terence’s separate property pursuant to the PMA. In 

addition, he contends, even setting the PMA aside, a preponderance of 

evidence proves the F&S stock was Terence’s separate property. We do not, 

however, reweigh the evidence under the applicable standard of review. On 

the record before us, we conclude that substantial evidence supports the trial 

court’s factual findings that the F&S stock was acquired during the marriage, 
11

it was therefore presumptively community property, and Patrick has failed to 

rebut that presumption. 

A. Relevant Legal Principles and Standard of Review

“Except as otherwise provided by statute, all property, real or personal, 

wherever situated, acquired by a married person during the marriage while 

domiciled in this state is community property.” (Fam. Code, § 760.) “Thus, 

there is a general presumption that property acquired during marriage by 

either spouse other than by gift or inheritance is community property unless 

traceable to a separate property source.” (In re Marriage of Haines (1995) 33 

Cal.App.4th 277, 289–290 (Haines); see also In re Brace (2020) 9 Cal.5th 903, 

924, 927 (Brace) [confirming the community property presumption set forth 

in Family Code section 760 applies to all property acquired during marriage 

on or after January 1, 1975].) “This is a rebuttable presumption affecting the 

burden of proof; hence it can be overcome by the party contesting community 

property status.” (Haines, at p. 290; accord In re Marriage of Weaver (2005) 

127 Cal.App.4th 858, 864.) However, “the burden is on the spouse asserting 

its separate character to overcome the presumption.” (See v. See (1966) 64 

Cal.2d 778, 783; In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1185–

1186 [spouse asserting property is actually separate property must overcome 

the community property presumption]; accord In re Marriage of Valli (2014) 

58 Cal.4th 1396, 1400 [“A spouse’s claim that property acquired during a 

marriage is separate property must be proven by a preponderance of the 

evidence.”].) 

Of relevance here, California recognizes the ability of parties to enter 

into binding premarital agreements regarding the characterization of their 

property, including variances with the statutory community property 

presumption. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 13 (Bonds); Fam. 
12

Code, § 1612.) Thus, absent fraud, duress, or undue influence, premarital 

agreements are generally enforceable. (Bonds, at p. 13.) Further, where 

there is a dispute as to the terms of a premarital agreement, “[t]he rules 

applicable to the interpretation of contracts have been applied generally to 

premarital agreements.” (Ibid.) 

“The status of property as community or separate is normally 

determined at the time of its acquisition.” (In re Marriage of Bouquet (1976) 

16 Cal.3d. 583, 591.) “If it is community property when acquired, it remains 

so throughout the marriage unless the spouses agree to change its nature.” 

(See v. See, supra, 64 Cal.2d at p. 783.) Family Code section 850 provides 

that married persons may transmute community property to the separate 

property of either spouse, or vice versa, but, pursuant to Family Code section 

852, “[a] transmutation of real or personal property is not valid unless made 

in writing by an express declaration that is made, joined in, consented to, or 

accepted by the spouse whose interest in the property is adversely affected.” 

We review the trial court’s characterization of the F&S stock as 

community property under a mixed standard of review. (In re Marriage of 

Lehman (1998) 18 Cal.4th 169, 184; In re Marriage of Brandes (2015) 239 

Cal.App.4th 1461, 1472.) We review the court’s factual findings for 

substantial evidence. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 

734; In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051–

1052 (Hill & Dittmer) [“it is well established that the trial court weighs the 

evidence and determines issues of credibility and these determinations and 

assessments are binding and conclusive on the appellate court”].) However, 

where “the basic ‘inquiry requires a critical consideration, in a factual 

context, of legal principles and their underlying values,’ the determination in 

question amounts to the resolution of a mixed question of law and fact that is 
13

predominantly one of law,” which we review de novo. (Lehman, at p. 184;

Brandes, at p. 1472; Rossin, at p. 734.) 

Patrick contends our review in this case should be purely de novo 

because there are no factual disputes. Although the parties did stipulate to a 

significant portion of the underlying facts, a number of Patrick’s assertions 

on appeal⎯including the intent of the parties and the assertion that Terence 

acquired the PAFCO assets as a benefit of his employment⎯are based, at 

least in part, on factual disputes. To the extent the trial court made relevant 

factual findings, we will not reweigh the evidence and will, instead, accept 

the court’s findings so long as they are supported by substantial evidence. 

(See Hill & Dittmer, supra, 202 Cal.App.4th at pp. 1051–1052.)9 

B. The F&S Stock Was Presumptively Community Property

The trial court found F&S was formed—and the F&S stock at issue in 

this appeal was acquired—during the course of Terence and Barbara’s 

marriage. Substantial evidence supports that factual finding and the trial 

court’s conclusion that the stock is presumptively community property. 

There is no dispute that Terence and his business partner Sjostrom 

formed F&S to acquire the assets of PAFCO in March 1996, and that the 

original stock certificate was issued to Terence that April, while Terence was 

married to Barbara. Patrick misapprehends the issue, however, and asserts 

that Terence started PAFCO long before he and Barbara were married. He 

9 Patrick also asserts there is no “presumption of correctness” because he 

filed objections to the proposed statement of decision, but the cases he relies 

on deal instead with preservation of issues on appeal. (See In re Marriage of 

Arceneaux (1990) 51 Cal.3d 1130, 1134 [party must point out deficiencies in 

statement of decision to avoid implied findings and inferences]; In re 

Marriage of Hardin (1995) 38 Cal.App.4th 448, 453, fn. 4 [addressing 

preservation of issues on appeal].) 
14

presents no evidence that Terence had any ownership interest—or any right 

to obtain an ownership interest—in the original PAFCO company when he 

and Barbara got married. Several years later, while still married, Terence 

and his business associate formed a different company, F&S, and that 

company acquired the assets of the original PAFCO company, including the 

name. As F&S did not exist until 1996, any interest Terence had in F&S was 

necessarily acquired during the marriage. 

Thereafter, the parties continually acted in accordance with the

statutory presumption of community property. Although the original stock 

certificate was issued in Terence’s name, Terence and Barbara executed the 

Declaration that same day, in which they acknowledged, “all interest in F & S 

. . . is in fact our community property.” Patrick asserts the Declaration is not 

reliable because the original was never found but he does not provide any

evidence suggesting the copy was not authentic or any authority concluding 

an original was necessary. Moreover, the couple created the Trust a couple of 

years later and, with the assistance of counsel, again confirmed their 

intention that the stock was community property in schedule A.10 They then 

had F&S issue a new certificate to “ ‘Terence S. Fitzgerald and Barbara 

Burns Fitzgerald, as Trustees of the Terence and Barbara Fitzgerald Trust 

u/t/d 12.15.98.’ ” Finally, they reaffirmed their intention once again in 2007 

when they executed the Restatement, informed their counsel that there were 

no changes to their property interests, and, thus, used the same schedule A. 

10 Patrick contends these documents are not proof of the parties’ 

intentions because they are inconsistent with the PMA and insufficient to 

effectuate a transmutation. But, of course, those arguments assume, 

contrary to the trial court’s finding, which we discuss post, that the PMA 

made the F&S stock Terence’s separate property. 
15

Because substantial evidence supports the trial court’s finding that the 

F&S stock was acquired during the marriage, the trial court correctly 

concluded the stock was presumptively community property in accordance 

with Family Code section 760.

C. Patrick Failed to Rebut the Statutory Presumption 

The statutory presumption under Family Code section 760 is rebuttable

by credible evidence showing, for example, “an agreement or clear 

understanding between parties regarding ownership status.” (Haines, supra, 

33 Cal.App.4th at pp. 289–290.) However, the burden falls to the party 

seeking to overcome the presumption and Patrick has not met that burden. 

(See v. See, supra, 64 Cal.2d at p. 783.) 

1. The PMA Does Not Characterize the F&S Stock as Terence’s 

Separate Property

Patrick’s primary contention on appeal is that the PMA defined the

F&S stock as Terence’s separate property, and the trial court erred because it 

“never bothered to interpret” the PMA. To the contrary, the trial court did 

interpret the PMA. It concluded the PMA was “silent regarding the character 

of property acquired during marriage that [was] not earned income, not 

employment benefits and not ‘in the joint names of the parties’ ”; “the term 

‘employment benefits . . . and the like’ [was] vague and ambiguous” but the 

parties’ conduct evidenced that they did not consider the F&S stock to be

Terence’s separate property; and the list of Terence’s separate property did 

not reflect “any stock options, rights to purchase assets from his employer or 

entity ownership.” The court therefore looked to evidence of the parties’

intent, and concluded Terence and Barbara intended the F&S stock to be 

community property. We find no error in the trial court’s conclusions. 

“The property rights of spouses prescribed by statute may be altered by 

a premarital agreement or other marital property agreement.” (Fam. Code,
16

§ 1500; see also Fam. Code, §§ 1611, 1612.) Written premarital agreements 

are generally considered to be enforceable contracts, and are subject to the 

same rules of interpretation as any other contract. (Bonds, supra, 24 Cal.4th 

at p. 13.) “The primary object of contract interpretation is to ascertain and 

carry out the mutual intention of the parties at the time the contract was 

formed, determined from the writing alone, if possible. [Citations.] When the 

language of a contract is ‘clear, explicit, and unequivocal, and there is no 

ambiguity, the court will enforce the express language.’ ” (In re Marriage of 

Nassimi (2016) 3 Cal.App.5th 667, 688 (Nassimi).) We construe “the 

language of [each] provision . . . in context, in view of the intended function of 

the provision and of the contract as a whole.” (Ibid.) To ensure our 

interpretation is consistent with the intent of the parties, we may also 

consider the circumstances under which the contract was made, as well as 

other extrinsic evidence that illuminates the parties’ intent. (Ibid.; Civ. Code,

§ 1647; In re Marriage of Benson (2005) 36 Cal.4th 1096, 1108.) Where there 

is ambiguity in the terms that is not readily resolved by the other rules of 

interpretation, “the language of a contract should be interpreted most 

strongly against the party who caused the uncertainty to exist.” (Civ. Code,

§ 1654.) 

Here, as the trial court correctly observed, the PMA does not 

specifically address the character of an ownership interest in a company

acquired during the course of the marriage. Patrick contends the PMA 

provides that all assets brought into the marriage or acquired during the 

marriage are separate property unless placed in a joint bank account or 

subject to a title document expressly naming both parties, and therefore the 

F&S stock must be Terence’s separate property. Patrick’s interpretation of 

the PMA is not consistent with the plain language of the PMA. 
17

First, the PMA states the parties “intend that all property owned by 

either of them at the time of marriage shall remain each party’s separate 

property.” (Italics added.) By its plain language, this refers to separate 

property in existence before the marriage. The PMA then sets forth a list of 

each party’s separate property and, not surprisingly, does not list any 

potential ownership interest in F&S or the PAFCO assets as Terence’s 

separate property. As Patrick himself concedes, he did not have a potential

ownership interest in either at the time of the marriage. Thus, the F&S 

stock was not Terence’s separate property at the time of marriage pursuant to 

the PMA. 

Regarding assets acquired during the marriage, the PMA states,“[a]ll 

earned income of either party during the marriage . . . shall be the separate 

property of that party,” and “[t]his shall include any employment benefits 

accru[ed] during marriage, including, but not limited to, 401K contributions, 

pensions, stock options, and the like.” Thus, the PMA clearly identifies a 

single category of assets acquired during marriage—earned income, including 

employment benefits—as each spouse’s separate property. The PMA further 

states that “[t]he parties may establish a joint account to meet their common 

expenses” and “[a]ny funds deposited into the joint account shall become 

community property.” (Italics added.) In addition, it includes the following 

provision regarding assets jointly acquired during marriage subject to title 

documents (hereinafter, the joint title provision): “All assets acquired during 

marriage in the joint names of the parties, to the extent there are title 

documents, shall be community property, except that the parties may take 

title to property specifying unequal interests held by each party, in which 

case the specified unequal title interests shall be and remain separate 
18

property interests of each party.”11 (Italics added.) Notably, it does not state 

that any property not held in a joint account or subject to a title document in 

the joint names of the parties is separate property. 

Patrick asserts that, pursuant to the PMA, both the property brought 

into the marriage by each spouse and all income earned during the marriage 

by either spouse was each party’s separate property. Based on those 

provisions, he contends all property acquired during the marriage must 

necessarily be separate property as well because such property could only be 

acquired with “earned income.” He further contends, based on that 

interpretation, that the parties must have intended to replace the statutory 

community property presumption with paragraph five of the PMA, and, as a 

result, the only two ways for the parties to create community property was to 

deposit funds into a joint account or to take title in the joint names of the 

parties.12 

The PMA does define the assets that the parties brought into the 

marriage and the earned income of each party during marriage as their 

separate property. However, the PMA stops there. As the trial court 

11 As discussed in more detail, post, Evidence Code section 662 provides a 

presumption of ownership based on legal title that may be implicated when

real property is titled to husband and wife as joint tenants as it often is by 

default. (See Brace, supra, 9 Cal.5th at pp. 914–934 [detailing the history of 

Evidence Code section 662 and Family Code section 760].)

12 We note that Patrick includes a significant amount of argument in the 

statement of the case, and later incorporates entire sections by reference in 

his legal argument. Although we have considered the entirety of the briefing 

on appeal, “[w]e are not bound to develop appellants’ arguments for them. 

[Citation.] The absence of cogent legal argument or citation to authority 

allows this court to treat the contention as waived.” (In re Marriage of 

Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone).) 
19

correctly observed, the PMA is silent as to the characterization of property 

acquired during marriage that is not earned income. While property may be 

acquired with earned income, or separate property, the terms are not 

synonymous, as Patrick’s assertions imply and, of course, property could also 

be acquired through the joint contributions of both spouses. Although Patrick 

suggests otherwise, there is ample evidence that Barbara did have her own

separate property and that she also earned income during the marriage, as 

we discuss in more detail, post. Terence had the assistance of counsel and, if 

he had wished to define all property acquired during the marriage as each 

spouse’s separate party, subject only to the joint account and joint title

exceptions delineated in the PMA, he could have included straightforward 

language to that effect. He did not. 

Patrick further contends the F&S stock is Terence’s separate property 

under the PMA because it is “an ‘employment benefit accru[ed] during the 

marriage.’ ” As set forth in the PMA, the term “employment benefits” falls 

within the definition of “earned income” and includes, but is “not limited to, 

401K contributions, pensions, stock options, and the like.” Under the 

principle of ejusdem generis, “where specific words follow general words in a 

contract, ‘the general words are construed to embrace only things similar in 

nature to those enumerated by the specific words.’ ” (Nygard, Inc. v. UusiKerttula (2008) 159 Cal.App.4th 1027, 1045.) Thus, we construe the general 

terms “including, but not limited to” and “and the like” in the context of the 

more specific enumerated terms. While 401(k) contributions, pensions, and 

stock options are all commonly understood benefits of employment, we agree 
20

with the trial court that the F&S stock did not fall within that same 

category.13 

Such an interpretation is consistent with the language of the contract

as a whole and the evidence of the parties’ mutual intent. (See Nassimi, 

supra, 3 Cal.App.5th at p. 688.) There is no basis in the PMA or the record 

from which to conclude that “employment benefits . . . and the like” includes 

an ownership interest in a new company formed during the marriage. To the 

contrary, while the other items are all common benefits of employment that

provide additional earnings with minimal risk, acquisition of an ownership 

interest in a company in lieu of employment necessarily entails greater risk

and may actually result in a decrease in earnings. Moreover, as the trial 

court concluded, the parties unambiguously stated that the stock was “in fact 

[their] community property” in executing the Declaration and specifically 

listed the stock as community property in schedule A. Such conduct leaves 

no room for interpretation; the couple did not believe the acquisition of an 

interest in F&S was an “employment benefit” under the PMA. Thus, we 

agree with the trial court’s conclusion that the F&S stock was not “earned 

income” or an “employment benefit” as those terms are used in the PMA. 

Patrick raises several arguments to the contrary, but we are not 

persuaded by any. First, Patrick asserts Terence “had been running PAFCO” 

for the previous 16 years and, thus, the assets he acquired were the direct 

result of his own labors, “many of them occurring prior to marriage.” He 

13 The trial court found “the usage of the term ‘employment benefits . . . 

and the like’ vague and ambiguous,” but ultimately concluded the conduct of 

the parties indicated the F&S stock was not an “employment benefit” under 

the PMA. We are not bound by the trial court’s interpretation when 

conducting a de novo review of the contract language but, nevertheless, we 

reach the same ultimate conclusion as the trial court.
21

asserts Terence’s “right to re-acquire” PAFCO was an “ ‘employment benefit 

accru[ed] during the marriage,’ ” akin to a stock option. It is not. A stock 

option is a type of bonus or profit-sharing in which a company gives an 

employee the right, or option, to buy shares of stock at a discounted or fixed 

price. (See In re Marriage of Hug (1984) 154 Cal.App.3d 780, 785.) As we 

have explained, Terence did not acquire stock in PAFCO—the company he 

worked for—and Patrick presents no evidence indicating Terence had any 

special right to acquire PAFCO, or its assets, arising from his employment.14 

To the contrary, it is undisputed that F&S—which was formed by Terence 

and his business partner during the marriage—purchased the assets from 

PAFCO in what appears to be an arm’s length transaction.

To the extent Patrick asks us to infer that the purchase price reflected 

some sort of discount as a benefit of Terence’s previous employment, the 

record does not support that contention. Although Terence negotiated his 

severance from Foodbrands concurrently with the purchase of the PAFCO 

assets, the letters between Terence and Foodbrands discussing his severance 

and the potential acquisition of assets show, as the trial court concluded,

“that Terence rejected the proposal that he forego a separate severance 

14 At oral argument, Patrick’s counsel asserted that the purchase and sale 

of PAFCO was “expressly carved out” in Terence’s severance agreement with 

Foodbrands as “a right” Terence would take with him upon termination of his 

employment, and thus acquisition of the F&S stocks was a benefit like a right 

to a stock option that arose from his employment. But as we previously 

noted, the severance agreement is not in the record. (See fn. 4 ante.) Rather, 

counsel directed this court to an unsigned copy of a single page of a severance 

agreement that is in the record and, contrary to his assertion, the language 

on which he appears to rely simply excludes any rights or claims arising from 

that separate transaction from the general release of claims associated with 

the severance agreement.
22

package as part of any asset purchase agreement.” Patrick offers no credible 

evidence to refute this fact. 

Second, Patrick asserts Barbara’s heirs’ interpretation of the PMA

renders it largely irrelevant because it would have no application to 

separately held assets. As an initial matter, the contention is at least in part 

based on the fact that the parties agreed that certain retirement accounts—a 

category of employment benefits specifically addressed in the PMA—are the

separate property of each spouse. It further assumes that the PMA does not 

address separately held assets at all if we conclude the joint title provision 

does not apply to property that is held by one party alone. To the contrary, 

the PMA also defines several items as each spouse’s separate property, 

regardless of title documents. The PMA is not rendered irrelevant simply 

because one or more assets are not jointly titled and also do not fall within 

the enumerated categories of each spouse’s separate property.15 

In sum, we agree with the trial court that the F&S stock does not fall 

under the category of “employment benefits” as defined by the PMA and is 

not otherwise specifically addressed in the PMA. Accordingly, the PMA does

not alter the characterization of the F&S stock and, likewise, does not rebut 

the statutory presumption that the F&S stock is community property. 

15 Patrick also contends that Respondents’ interpretation of the PMA is 

“absurd” because it would allow one party to hold a 99.9999 percent interest 

in property as their separate property—if so defined by a joint title 

document—while defining property titled solely to one party as community 

property. He does not develop the argument, including explaining what 

Respondents’ interpretation even is or how it leads to such an allegedly 

absurd result, nor does he provide any record citation. Because we are not 

bound to develop his arguments, we treat the contention as waived. (Falcone, 

supra, 164 Cal.App.4th at p. 830.) 
23

2. Additional Evidence Does Not Rebut the Community Property 

Presumption 

Setting aside the PMA, Patrick asserts he presented sufficient 

additional evidence to rebut the presumption. In doing so, Patrick asks us to 

reweigh the evidence presented in the trial court, and to ignore the trial 

court’s finding that there was no evidence that either spouse identified the

F&S stock as Terence’s private property during their lifetimes. Moreover, as 

he did in the trial court, Patrick overstates the significance of much of the 

evidence he relies on, which consists largely of financial documents prepared 

for purposes other than characterizing the couple’s property interest. By 

contrast, as we have explained, in the few instances where the parties 

directly addressed the characterization of the F&S stock—in the Declaration 

and in Schedule A—they consistently characterized it as community 

property. 

Patrick asserts the stock certificate, and various other financial 

documents listing Terence as the shareholder, prove Terence was the sole 

owner. As we have already discussed, the stock certificate itself is not 

dispositive as the parties executed the Declaration the same day explicitly 

stating that the stock was “held in the name of Terence . . . for convenience 

only,” and it “is in fact [their] community property.” (Italics added.) Since

the Declaration states the stock was issued in Terence’s name for convenience

only, it is not surprising that he was subsequently listed as the owner or 

shareholder in various other documents. For example, Patrick points to a 

“DECLARATION REGARDING INVESTMENT” in which Terence 

represented he was acquiring the shares “for investment for Investor’s own 

account, and not with a view to or for sale[.]” (Italics added.) As this 

declaration itself suggests, the purpose of the document was not to 

characterize the stock as Terence’s personal property, but was instead to 
24

ensure he was not planning to sell the stock. Similarly, Patrick points to a 

document in which the officers approved Terence’s request to transfer “the 

shares he holds” to the Trust but, of course, the shares were listed, at that 

time, in his name. Moreover, the very purpose of the document was to cancel 

the certificate in Terence’s name and re-issue a new certificate in the name of 

the Trust, and the same document states Terence wishes to transfer the 

shares to the Trust, of which he and Barbara “will be the settlors, trustees, 

and lifetime beneficiaries.” (Italics added.) 

Patrick also contends Terence stated F&S was his own corporation and 

that he bought his own company in a document submitted to the social 

security agency, but those statements were made in the context of explaining 

why he had received wages from what appeared to be a single company name 

under two separate employer identification numbers. Similarly, Terence 

stated that he transferred $25,000 in exchange for F&S stock in a tax filing 

for the purpose of asserting the transaction was a “tax-free transfer of 

assets.” None of these statements were made for the purpose of 

characterizing the property as Terence’s separate property. 

Next, Patrick asserts all available evidence shows Terence paid for the 

F&S stock with his own money. While tracing is one way that a party may

overcome the community property presumption, it would not be sufficient in 

this case because here, the parties also executed the Declaration concurrently 

with the purchase declaring that the stock was in fact their community 

property. Thus, even if Patrick could establish that the stock was purchased 

with Terence’s separate property, it would not necessarily follow that the 

stock was Terence’s separate property as a result. 

In any event, Patrick does not present any evidence actually tracing the 

funds and, instead, argues the money must have come from Terence’s 
25

separate account.16 Patrick relies on various financial statements to assert 

the couple never created the joint account contemplated by the PMA, but

those statements are joint statements and they provide no details regarding 

the listed accounts beyond the bank at which they were held. Regardless, 

Barbara could have contributed funds to the purchase of F&S stock even in 

the absence of a joint bank account. Patrick contends Barbara could not have 

done so because, according to the PMA, she entered the marriage with only

$10,000 in total net assets, “meaning her available cash was even lower than 

that.” So, he asserts, “Barbara plainly lacked the financial wherewithal to 

fund a $25,000 stock purchase and $175,000 loan to PAFCO.” He ignores the 

fact that Barbara earned income throughout the marriage, including an 

annual salary of approximately $65,000 from 1993 to 1996, three years before 

F&S purchased the stock. Patrick’s own sister also testified at trial that 

Barbara had an account in her own name with a balance of approximately 

$130,000. Patrick fails to identify that account or any other account into 

which Barbara’s earnings were placed, and thus it appears the evidence he 

relies upon does not accurately represent the totality of the couple’s finances. 

Patrick further contends we can infer Terence paid for the PAFCO 

stock with his separate property because the severance amount he received 

was the same as the purchase price for the PAFCO assets. Again, the record 

does not support his contention. The only document Patrick references sets 

the purchase price for the inventory—the bulk of the assets purchased—as

the “book value” on the closing date, less an agreed upon discount of “the 

smaller of (i) 10% of [the] book value or (ii) $25,000.” This document is not 

16 Patrick contends tracing is not necessary because the joint title 

provision of the PMA eliminated the need for tracing. As we have already 

explained, we disagree with Patrick’s interpretation of that provision. 
26

sufficient to establish the actual purchase price of the PAFCO assets. While 

we acknowledge courts have some flexibility to consider indirect evidence of 

tracing, here, the evidence is simply insufficient. (See In re Marriage of 

Ciprari (2019) 32 Cal.App.5th 83, 97 [“trial courts have the flexibility to 

consider any credible evidence and to evaluate alternative tracing methods to 

determine whether the proponent of the tracing carries his or her burden of 

proof”].) 

Next, Patrick asserts Terence represented to his children that they 

would inherit the company upon his death. He provides no authority a selfserving oral statement is sufficient to alter the characterization of the 

property and, to the contrary, Family Code section 852 requires that a 

transmutation be in writing by an express declaration. To the extent he 

asserts Terence’s statements are evidence of his intent at the time of signing 

the PMA, the alleged statements occurred years later, primarily during 

informal conversations in which Patrick admitted that Terence did not “get 

into specifics about his estate assets” or “how his estate was structured.” 

Similarly, Patrick asserts Terence’s actions after Barbara’s death is 

evidence that Terence believed the stock was his separate property. To the 

contrary, it is undisputed that Terence allocated everything except the 

$15,000 cash distribution specified in the Restatement to his own Survivor’s 

Trust, including other items that were at least allegedly Barbara’s separate 

property. Terence’s own mishandling of the Trust after Barbara’s death is 

not evidence of the party’s mutual intentions at the time of marriage. 

In sum, none of the evidence Patrick presents is sufficient to overcome 

the statutory presumption that the F&S stock was community property.17 

17 Patrick asserts neither the Declaration nor any other document in the 

record was sufficient to effectuate a transmutation of the F&S stock from 
27

3. The Title Presumption Set Forth in Evidence Code Section 662 

Does Not Overcome the Community Property Presumption

Evidence Code section 662 provides: “The owner of the legal title to 

property is presumed to be the owner of the full beneficial title. This 

presumption may be rebutted only by clear and convincing proof.” Here, the 

trial court cited our high court’s recent decision in Brace and concluded that

“[t]he presumption that property acquired during marriage is community 

property trumps the form of title presumption in Evidence Code section 662.” 

(See Brace, supra, 9 Cal.5th at p. 935.) 

In his opening brief, Patrick asserted the trial court’s statement 

regarding the relative weight of the two presumptions was “irrelevant” 

because he never argued that title was controlling. However, in 

supplemental briefing based on a recently published opinion from our sister 

court, Estate of Wall (2021) 68 Cal.App.5th 168 (Wall), he now contends the 

trial court’s statement was error and that Evidence Code section 662 should 

prevail over the community property presumption in Family Code section 

760. (See Wall, at p. 174 [Concluding Evidence Code section 662 prevails

“when determining the character of real property in a probate matter.”].)18 

We conclude Wall is not instructive here as it involved title in the form 

of a deed to real property, not stock. (Wall, supra, 68 Cal.App.5th at p. 169.) 

In any event, Wall relies on Brace, in which our high court held “that the 

Terence’s separate property to community property. Because we have 

concluded the stock was always community property, and was never 

Terence’s separate property in the first instance, no transmutation was 

necessary. Accordingly, we need not, and do not, address this assertion.

18 The parties requested the opportunity to submit additional briefing 

addressing the impact of the decision in Wall on this case. We granted the 

request and have reviewed and considered the supplemental letter briefs. 
28

community property presumption in Family Code section 760 applies not only 

to dissolution actions, . . . and that Evidence Code section 662 does not apply 

when it conflicts with the Family Code section 760 presumption.” (Brace, 

supra, 9 Cal.5th at p. 935; Wall, at p. 175.)

In Brace, the Court addressed whether the form of title presumption 

set forth in Evidence Code section 662 applied to the characterization of 

property in a dispute between a married couple and a bankruptcy trustee

over real property titled to the couple as “ ‘ “husband and wife as joint 

tenants.” ’ ” (Brace, supra, 9 Cal.5th at pp. 911–913.) To answer the 

question, the Court conducted a comprehensive review of the origins of both 

the community property and title presumptions under California law. 

As the Court explained, historically, women did not have the same 

rights as their husbands to manage or control community property. (Brace, 

supra, 9 Cal.5th at p. 918.) The Legislature created the “married woman’s 

presumption”—which stated, in part, the conveyance of property to a married 

woman by an instrument in writing created a presumption that title was 

vested in her as her separate property—“ ‘to facilitate the wife’s management 

of property’ by expanding her ability to acquire and manage separate 

property.” (Ibid.) However, “[t]he married woman’s presumption, when 

applied together with the community property presumption, sometimes led to 

claims by married women for more than a half interest in property jointly 

deeded to husband and wife.” (Ibid., italics added.) To address this concern, 

“the Legislature added language to Civil Code former section 164 to provide 

that joint conveyances to husband and wife created a presumption of 

community property unless the form of title indicated otherwise.” (Id. at 

p. 921, italics added.) Later, in 1973, the “Legislature enacted landmark 

reforms that allocated equal management rights to the wife over community 
29

property,” and “eroded the original impetus for facilitating the wife’s 

ownership of separate property.” (Id. at p. 923.) Thus, as the Court

explained, “the rules characterizing property . . . based on form of title have 

faded,” and, unlike the former statutes, “Family Code section 760 does not 

permit the community property presumption to be rebutted simply by the 

manner in which a married couple takes title.” (Id. at p. 927.) 

As a result, the Court concluded Evidence Code section 662 does not 

overcome the community property presumption in Family Code section 760, 

and expressly refused to limit its holding to the context of marital 

dissolutions. (Brace, supra, 9 Cal.5th at p. 928.) To address arguments 

raised by the appellants, the Court went on to explain, “our approach does 

not undermine the stability of title in the context of probate,” and in that 

context, stated, “[c]ourts have consistently held that for property titled in 

joint tenancy, the form of title controls at death.” (Id. at p. 931.) Thus, as the 

Court explained, its holding “does not alter the well-established default rule 

that form of title controls at death, nor does it alter the procedures through 

which a surviving joint tenant may clear title to real property held in joint 

tenancy.” (Id. at p. 934, italics added.) 

In Wall, a husband died intestate and his wife petitioned the probate 

court for an order determining their home, which was titled in the husband’s 

name alone, was in fact community property. (Wall, supra, 68 Cal.App.5th at 

p. 169.) The husband’s children objected and, on appeal, asserted, among 

other arguments, that the trial court erred when it determined the Family 

Code section 760 community property presumption prevailed over the 

Evidence Code section 662 form of title presumption. (Id. at pp. 169–170.) 

The appellate court relied heavily on the Brace decision, but focused 

primarily on the high court’s comments regarding stability of title and the 
30

“ ‘default rule that form of title controls at death.’ ” (Id. at p. 175.) In doing 

so, the Wall court concluded that “the probate court erred in determining 

Family Code section 760 prevailed.” (Ibid.) However, because the husband 

assured the wife her execution of a quitclaim deed putting the property in his 

name “meant nothing,” the court ultimately set aside title under the undue 

influence presumption set forth in Family Code section 721. (Wall, at 

pp. 172–173.) 

To state the obvious, the property at issue in this case is not real 

property. Thus, neither Brace nor Wall, which both address title in the form 

of a deed to real property, are directly on point. Changing course, Patrick

now asserts the stock certificate is “the title document of relevance,” akin to 

the deeds at issue in Brace and Wall, but he provides no authority indicating 

a stock certificate is a title document under either Evidence Code section 662 

or the more general default rule discussed in Brace that form of title controls 

at death. (Cf. In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 591–594

[refusing to apply Evidence Code section 662 presumption based on placing 

“title” to stock in wife’s name].) To the contrary, as explained in Brace, those 

title presumptions arose from concerns regarding the ways in which spouses 

took joint title to real property. (See Brace, supra, 9 Cal.5th at pp. 918–927.) 

Further, even if the stock certificate could be considered a title 

document, Brace is the controlling authority and, there, the Court held 

“that Evidence Code section 662 does not apply when it conflicts with 

the Family Code section 760 community property presumption.” (Brace, 

supra, 9 Cal. 5th at p. 912.) We do not read the Court’s statements in Brace

regarding the default rule that, for property titled in joint tenancy, form of 

title controls at death as carving a wide exception to its primary holding that 

“Evidence Code section 662 does not apply to property acquired during 
31

marriage when it conflicts with Family Code section 760,” or as suggesting 

Evidence Code section 662 governs over Family Code section 760 in all 

probate actions. (See Brace, supra, 9 Cal.5th at p. 938, italics added.) 

Instead, as we have explained, the Court’s discussion in Brace was centered 

squarely in the context of the joint title set forth in deeds to real property. 

(See Brace, supra, 9 Cal.5th at pp. 918–927.) 

Finally, even were we to consider the stock certificate as a title 

document, Patrick ignores the form of title at the time of death. At the time 

of both Barbara and Terence’s deaths, the stock certificate was issued to 

Terence and Barbara, as co-trustees of the Trust, and not to Terence in his 

own name. And the Trust and Restatement unambiguously defined the F&S 

stock as the couple’s community property. (See Allen v. Sutter County Bd. of 

Equalization (1983) 139 Cal.App.3d 887, 890 [“it is a rudimentary principle of 

trust law that the creation of a trust divides title—placing legal title in the 

trustee, and equitable title in the beneficiaries”]; Brace, supra, 9 Cal.5th at 

pp. 931–934 [discussing common law rule that form of title controls at 

death].) Patrick contends the transfer of the stock to the Trust is

“immaterial,” but Patrick himself contends the original stock certificate is a

title document. Thus, even if we were to accept his assertions, which we do 

not, that title controls at the time of death and the stock certificate is a valid 

title document, we would conclude the relevant title document establishes

that the stock was held by Terence and Barbara as their community 

property. 
32

III.

The Trial Court Did Not Abuse Its Discretion by Denying

Appellant’s Motion in Limine

Patrick also contends the trial court erred by denying his motion in 

limine and allowing Barbara’s heirs to change theories after the close of fact 

discovery. We disagree. 

Barbara’s heirs originally asserted the PMA had been revoked, in part 

because the original could not be located. However, in January 2020, the 

attorney who prepared the PMA provided a copy of the original, along with a 

declaration certifying the document. In a deposition that same month, a 

rebuttal expert for Barbara’s heirs opined, in response to questions asked by 

opposing counsel, that an asset taken solely in the name of one party would 

not fall under the joint title provision of the PMA.

Approximately 10 months later, on the eve of trial, Patrick asserted, in

a motion in limine,that the rebuttal expert had presented a new theory after 

the close of fact discovery. Based on that contention, he asked the court to 

exclude “any evidence or argument to the effect that (i) although the express 

purpose of the [PMA] was to comprehensively ‘defin[e]their respective 

property rights following their contemplated marriage’(Trial Ex. 1, p. 1), 

somehow it failed to address a circumstance where one spouse took title to an 

asset solely in his or her name, as happened with respect to the [F&S] stock 

(where Terence Fitzgerald took title alone); and (ii) as a consequence, 

statutory presumptions as to whether assets are community or separate 

property were left undisturbed.” He also asked the court to exclude the 

expert as not timely disclosed and not the subject of proper rebuttal. 

The trial court excluded the expert but concluded the theory was “a 

matter of contract interpretation and argument” and that “[t]he failure to 
33

disclose in discovery can be cured by a request for continuance which, at least 

at this point, has not been made, if there is true prejudice.” Patrick’s counsel 

did not request a continuance or argue the issue further.

We review the trial court’s ruling on the motion in limine for an abuse 

of discretion. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 

Cal.App.4th 257, 269.) We “will not disturb the trial court’s decision unless 

the trial court exceeded the limits of legal discretion by making an arbitrary, 

capricious or patently absurd determination.” (Ceja v. Dept. of 

Transportation (2011) 201 Cal.App.4th 1475, 1481.) Here, the trial court 

reasonably determined the theory was primarily a legal theory and that any 

prejudice could have been resolved by a continuance. Having failed to seek a 

continuance, or additional discovery, despite the court’s ruling, Patrick 

cannot now complain that he was prejudiced by the late disclosure.

Patrick asserts the trial court should have held Barbara’s heirs to their 

sworn positions, but the primary case he relies upon concerns an affirmative 

admission that the party sought to reverse at trial. (See Universal 

Underwriters Ins. Co. v. Sup. Ct. (1967) 250 Cal.App.2d 722, 725–726, 729

[“With the receipt of Universal’s answer to interrogatory 4, Pacific’s attorneys 

were entitled to rely on Universal’s admission that it did not contend that 

there was any legal consideration.”].) By contrast here, the allegedly new 

theory did not directly contradict any of Barbara’s heirs’ previous responses. 

To the contrary, Barbara’s heirs always contended the F&S stock was 

community property and that Terence and Barbara never intended for 

Terence to take title of the stock as his separate property.

Moreover, the discovery requests included in the motion did not ask 

Barbara’s heirs to provide their interpretation of any provision of the PMA. 

When counsel asked the expert to do so at deposition, 10 months before trial, 
34

the expert provided his response. If Patrick believed he needed additional 

discovery as a result of the disclosure, he could have requested additional 

discovery. (Code Civ. Proc., § 2024.050 [addressing motions to reopen 

discovery].) Again, he did not make any attempt to do so.

Accordingly, we find no abuse of discretion in the trial court’s denial of 

the motion in limine. 

DISPOSITION

The order is affirmed. Respondents are entitled to their costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

DO, J.

WE CONCUR:

AARON, Acting P. J.

DATO, J.