Filed 3/16/21 Estate of Witzling CA2/4

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ESTATE OF MARIE 

ANTIONETTE WITZLING, 

Deceased

SANDY WITZLING,

Plaintiff and Respondent,

v.

RICHARD PONTI,

Appellant.

 B303449

 (Los Angeles County

 Super. Ct. No. BP160490)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David J. Cowan, Judge. Affirmed.

Mazur & Mazur, Janice R. Mazur for Appellant.

Sean K. Higgins for Plaintiff and Respondent.
2

This appeal arises from the settlement of a probate matter 

regarding the estate of Marie Antionette Witzling.1 Marie’s 

husband, appellant Richard Ponti, and her son, respondent 

Sandy Witzling, asserted competing claims over the estate and a 

related trust. Mid-trial, they reached a settlement agreement 

disposing of their claims and allocating 33 percent of the estate to 

Richard and the remainder to Sandy. Shortly thereafter, Ponti 

moved to rescind the agreement. The court denied the motion 

and granted Sandy’s motion to enforce the settlement. This 

appeal followed. Ponti contends the trial court erred in rejecting 

his expert’s opinion that he suffered from an acute stress reaction

at the time of the settlement and was therefore incapable of 

understanding its terms. Ponti further argues that the court 

lacked substantial evidence to conclude that he had the capacity 

to enter into a settlement agreement. We affirm. 

1We refer to individuals with the Witzling surname by first 

name for clarity.
3

FACTUAL AND PROCEDURAL HISTORY2

I. Background 

Marie and Ponti both immigrated to the United States from 

Romania in the 1970s. According to Ponti, he first met Marie in 

the late 1970s, when she was married to John Witzling. In 1981, 

Marie and John established the John Isaac Witzling and Marie 

Antoinette Witzling Intervivos Revocable Trust Agreement (the 

Witzling Trust). John died in 1983. In December 2013, Marie 

married Ponti, who was 17 years her junior. 

Marie had one child, Sandy, now an adult. In June 2014, 

Sandy filed for a conservatorship over Marie, alleging that her 

health was rapidly deteriorating. In August 2014, Sandy filed a 

petition to determine the validity of the Witzling Trust in Los 

Angeles Superior Court, case number BP154973 (the trust case). 

While these proceedings were pending, Marie died on February 

26, 2015 at the age of 86. At the time, her estate consisted 

2Sandy’s brief includes a six-page section purportedly 

containing background facts, without any citations to the record. 

Ponti requests that we strike or disregard these unsupported

portions of the respondent’s brief. We will disregard all 

unsupported factual assertions in Sandy’s brief and admonish his 

counsel to comply with the rules of court. (See Cal. Rules of 

Court, rule 8.204(a)(1)(C) [briefs must “[s]upport any reference to 

a matter in the record by a citation to the volume and page 

number of the record where the matter appears”]; see also, e.g., 

Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 

194 Cal.App.4th 839, 846 [“We look askance at this practice of 

stating what purport to be facts—and not unimportant facts—

without support in the record. This is a violation of the rules, . . 

.with the consequence that such assertions will, at a minimum, 

be disregarded.”].)
4

primarily of two apartment buildings on Orange Street and 

Martel Avenue in Los Angeles, valued at over $3,000,000. 

II. Probate Litigation

On March 3, 2015, Ponti filed a petition for probate of will 

and letters testamentary in Los Angeles Superior Court, case 

number BP160490 (the probate case).3 The petition attached a 

copy of a handwritten will executed by Marie on March 3, 2014, 

purporting to leave her entire estate to Ponti. 

Sandy filed a contest and objection to the probate in April 

2015. He alleged that he was the sole beneficiary of the Witzling 

Trust, that Marie executed a “pour-over” will concurrently with 

the trust, and that half of the trust became irrevocable upon 

John’s death in 1983. Sandy asserted that Marie’s 2014 will was 

invalid because it was the result of undue influence by Ponti, who 

“secretly married” Marie in 2013, isolated her from family 

members, and prevented her from receiving proper medical care. 

As such, he contended that Marie lacked testamentary capacity 

at the time she executed the will. Sandy also alleged that the 

purported disposition of assets under the 2014 will was contrary 

to Marie’s “long-standing estate plan to leave her property to her 

only child.”

Sandy also filed a petition alleging financial and physical 

elder abuse of Marie by Ponti, and seeking an order declaring the 

marriage between Marie and Ponti a nullity. Sandy challenged a 

March 2014 deed executed by Marie, as successor trustee, 

transferring the Martel property out of the Witzling Trust, 

3The probate and trust cases were deemed related and the 

court’s 2019 statement of decision and judgment refers to both 

proceedings. 
5

claiming that it resulted from Ponti’s undue influence. He also 

challenged the validity of money transfers by Marie into a bank 

account jointly held with Ponti. 

Sandy further alleged that Ponti “began to deny [Marie] 

proper food, water, clothing, bathing, and healthcare,” refused to 

allow her to be hospitalized or properly medicated, and isolated 

her from family. Sandy claimed that he initiated conservatorship 

proceedings after Marie was hospitalized twice in June 2014 

because she was malnourished, dehydrated, and “near death.” 

Marie was discharged from the hospital into a residential care 

facility on July 1, 2014, where she ultimately died in February 

2015. 

Ponti filed a response and objections to Sandy’s elder abuse 

petition. Ponti contended that he began dating Marie in 1989, at 

which point he moved in with her into an apartment building she 

owned on Orange Street. He further alleged that Sandy never 

visited Marie at her home and only saw her three or four times a 

year until 2013. Ponti asserted that the 2014 will and trust 

documents were done at Marie’s suggestion and in accordance 

with her wishes. He disputed Sandy’s allegations regarding his 

treatment of Marie and the state of her health prior to her “forced 

hospitalization” in June 2014. He attached declarations from two 

attorneys who stated that they met separately with Marie in 

March and April, 2014, that she confirmed her desire to leave her 

estate to Ponti, and told them that she wrote and signed the 2014 

will. 

III. Settlement

The court trial commenced on December 3, 2018 in the 

probate case. On the morning of December 11, 2018, the fifth day 

of trial, Ponti called as witnesses two longtime friends and 
6

acquaintances, who testified in support of Ponti’s claim that he 

and Marie held themselves out as husband and wife for decades, 

and that Marie remained in good health as of 2013.4

Sandy called his expert, psychologist Dr. Gary FreedmanHarvey, who opined that Marie had “signs and symptoms 

consistent with progressive dementia” beginning in mid-2013 or 

earlier, and that in 2014, Marie “lacked the executive function to 

make decisions of consequence for her health care or her finances, 

or contractually, or even personal relationship decisions.” In 

particular, he testified that Marie lacked capacity to execute her 

March 2014 will, or make decisions regarding transfer of property 

or money. He opined that during 2014, Marie was “physically 

and emotionally dependent” upon Ponti and would not have been 

able to say “no” to him. He also noted several instances in the 

records where Ponti resisted “efforts to separate Mr. Ponti from 

Mrs. Witzling, for the purpose of some evaluation or intervention 

by a medical staff.”

5

Dr. Freedman-Harvey concluded his testimony in the 

afternoon on December 11, 2018. Afterward, during a discussion 

on the record regarding scheduling the remaining witnesses, 

Ponti’s counsel, Marshal Oldman, stated to the court: “One of the 

4 Although Sandy had not yet concluded his case-in-chief, 

Ponti’s witnesses were called out of order to accommodate 

scheduling issues. 

5The record contains a transcript of the trial proceedings on 

December 11, 2018, but excludes the four prior days of testimony. 

We include some of the evidence from the underlying trial to the 

extent relevant to the initiation of settlement proceedings on 

December 11, 2018 and Ponti’s claims regarding his mental state 

at the time.
7

matters that counsel and I have talked about, we did discuss 

settlement at some length with Judge Lager a couple of weeks 

before trial started and that the parties were not that far apart at 

that point, and it may be that at some point with this court’s 

assistance we might be able to pull something together that 

people can agree to.” Sandy’s counsel agreed to speak to Sandy, 

and the court noted that it would only conduct a settlement 

conference “when I have assurance that both clients want me to 

do so.” The court announced a 15 minute recess to allow the 

attorneys to speak to their clients, cautioning that “it is 

important for them to realize that I might hear things in a 

settlement conference that are kind of candid that might not be 

otherwise revealed during the trial.”

After the break, the court placed on the record that the 

parties had conferred with their attorneys regarding “the court 

participating in a voluntary settlement conference at their 

request, that the parties understand and agree to all of the 

following: [¶] That they waive any right they might otherwise 

have . . . to disqualify the court from further hearing the trial . . . 

by virtue of its participation in a settlement conference with the 

parties. [¶] That this court will continue to be the trial judge for 

all purposes, if the case does not settle. [¶] That [the] parties 

understand that the court may be separately [sic] with the 

lawyers or with one lawyer or with one party in an attempt to 

resolve this dispute. . . . [¶] That the parties recognize and agree 

that they may express . . . candid comments about the chances of 

winning or otherwise . . . [that] they might not otherwise reveal 

to the court. . . . [¶] And that they agree and understand that the 

court can continue the trial . . . with that additional information. . 

. . [¶] That they are doing this willingly, voluntarily, with the 
8

advice of their attorneys and in an effort to try to save time and 

expense.” The court stated that it would be willing to conduct the 

settlement conference if “all of those conditions, provisions are 

agreeable.” The court asked, “Mr. Ponti, do you agree?” Ponti 

responded, “Yes.”

The proceedings were paused for the settlement conference. 

About 90 minutes later, the court announced on the record that 

the parties had reached an agreement. The court stated the 

terms for the record and directed the parties to “please add on as 

necessary: [¶] All the properties will be administered out of the 

estate proceeding, which is in front of the court now. Whether 

they were or are now in trust, everything comes back into the 

estate. The net proceeds – one-third of the estate, 33 percent, 

after all other expenses are paid – 33 percent will go to Mr. Ponti 

and 67 percent” would go to Sandy. Ponti’s counsel reiterated 

that Ponti would take one-third of the estate and Sandy would 

take two-thirds. The court continued that “both properties will 

be sold promptly in the spring,” by the estate administrator, and 

that “everybody shall cooperate in the prompt sale of the 

properties. The net proceeds will be administered through the 

estate.” Both counsel agreed that the properties would be put on 

the market by May 1, subject to court confirmation, and that the 

court would retain jurisdiction to enforce the settlement. Both 

counsel further stated their agreement that the court could 

dismiss all pending petitions with prejudice under the terms of 

the settlement, and Ponti’s counsel confirmed that Ponti would be 

“allowed to live in [the Orange property] until the close of escrow 

while he cooperates with the sale.” The court then inquired who 

was paying the mortgage on the property, and Ponti responded 

that it was being paid by the administrator. The court and Ponti 
9

then had the following exchange:

“The court: Sir, have you heard all of those terms?

[“Ponti]: Yes.

“The court: Do you understand them?

“[Ponti]: Yes, I do.

“The court: Have you had enough time to speak to your 

attorney?

“[Ponti]: Yes.

“The court: Do you agree to those terms?

“[Ponti]: Yes.

“The court: Counsel join?

“Mr. Oldman: Yes, your honor.”

The court proceeded to ask Sandy and his counsel the same 

questions. Afterward, the court concluded the proceedings by 

thanking the parties “for being here and reaching this agreement. 

Congratulations and we are done.”

IV. Post-Settlement Proceedings

A. Petitions

On February 5, 2019, Ponti, represented by new counsel, 

Randy Godin, filed a motion to repudiate the settlement 

agreement, vacate the dismissal, and stay the sale of the 

properties. In the motion, Ponti stated that mid-trial, his former 

attorney “unilaterally offered to settle the case and then, 

pressured PONTI into a settlement.” He further stated that 

“[i]mmediately after” the settlement and dismissal of the cases, 

he “changed his mind” and notified Oldman “that he wanted to 

retract the settlement.” Ponti contended that he did not 

“understand the magnitude of what had just happened” and “was 

not thinking clearly,” but under “severe pressure” from his 

attorney, he “reluctantly agreed to the terms in the open court.”
10

In particular, he noted that he “always made it clear he did not 

want to move from the real property he had been living in for 

over 25 years,” but that the terms of the settlement agreement 

included selling the two apartment buildings in Marie’s estate, 

thus “forc[ing] PONTI to relocate.” Ponti signed a verification 

under penalty of perjury declaring that he had read the motion 

and it was true and correct. Sandy filed an opposition. 

On April 3, 2019, the court heard and denied Ponti’s motion 

to repudiate the settlement. The court found that it could not 

procedurally set aside the settlement agreement by motion. 

Further, the court found that the “basis of the motion is 

unjustified, that a party cannot just reconsider an agreement 

they have already made.” The court noted that the issue of Ponti 

leaving his home “was specifically discussed during the 

settlement conference. The court was aware that initially Mr. 

Ponti did not want to leave his home. Presumably, he and his 

then lawyers discussed the issue. Mr. Ponti then did agree to 

that provision, among others, on the record. I asked him about 

those. [¶] Therefore, this is not a case where he didn’t realize he 

was agreeing to something that he was agreeing to. It was 

specifically discussed.” The court also recalled that the trial had 

included “significant adverse testimony to Mr. Ponti, including 

elder abuse alleged by the other side,” and it therefore 

understood why Ponti was “entering into the agreement at that 

time.” The court noted that if Ponti had “some other basis for 

relief,” he could raise it “in connection with any motion to enforce 

the agreement.”

On April 9, 2019, Sandy filed a motion to enforce the 

settlement agreement pursuant to Code of Civil Procedure 

section 664.6. Ponti filed an opposition, represented by attorney 
11

Donald Gordon. 

In his opposition, Ponti argued that the agreement should 

be rescinded because “he was, at the time, not capable of 

consenting to the purported Agreement and lacked the necessary 

capacity” to understand or enter into it. In his supporting 

declaration, Ponti stated that he had not discussed settlement 

between November 16, 2018, when the parties concluded an 

unsuccessful pre-trial mediation, and December 11, 2018. Ponti 

was therefore confused when Oldman “blind sided” him on 

December 11, 2018 by telling Ponti “for the first time since the 

litigation started, that I had to settle.” He believed up to that 

point that “the case was proceeding well.” According to Ponti, 

Oldman then “whispered to me in the Court hallway for a mere 

few minutes . . . he could not explain, and I could not understand, 

why the sudden need to settle. I initially refused to consider the 

settlement.” However, he was then taken into the court’s 

chambers, which he found “very intimidating.” Ponti recalled 

hearing from the judge “that I should settle; I took this to mean 

that he had already formed opinions concerning the case.”

Ponti claimed he did not understand the consequences of 

the settlement, including that “I would have to leave my home of 

30 years and give up two thirds of what my wife wanted me to 

have.” He stated that he “became confused and [did] not 

remember much of what happened thereafter.” Ponti also stated 

that during the trial he had experienced “severe anxiety and 

sleeplessness,” he was taking medication for a “head cold,” and on 

December 11 he was “not feeling well” and had been unable to 

eat. He claimed that he could not “recall actually agreeing to 

anything, nor do I recall my then attorney ever clearly explaining 

what was happening or why he suddenly had a change of mind.”
12

In addition to his opposition to Sandy’s motion to enforce the 

settlement, Ponti filed a petition for order to rescind the 

settlement agreement. Sandy filed objections to Ponti’s petition 

for rescission. 

B. Evidentiary hearings

The court held a two-day evidentiary hearing on Sandy’s 

motion to enforce the settlement agreement and Ponti’s petition 

to rescind it, on July 12 and August 22, 2019. 

1. Dr. Wu

Ponti presented expert testimony and a report from Dr. 

Pauline Wu, an adult geriatric psychiatrist and assistant clinical 

professor. In her report, Dr. Wu stated that she performed a 

“geriatric psychiatric examination” of Ponti for two hours on May 

7, 2019 to determine his “general mental state and his capacity to 

contract during settlement proceedings on December 11, 2018.”

She opined that Ponti’s “psychological reaction to the sudden 

shift of stopping trial proceedings and feeling compelled to settle 

in a short amount of time meets the diagnostic criteria for Acute 

Stress Reaction.”

During the hearing, Dr. Wu explained that an Acute Stress 

Reaction (ASR) is defined under the International Classification 

of Disorders, 10th edition (ICD-10), as “a transient psychological 

response to an extreme mental stressor.” She testified that 

typically, the reaction subsides within hours, and its severity 

depends on an individual’s vulnerability, but the symptoms can 

include “a constriction, in terms of consciousness, narrowing of 

attention, an inability to comprehend stimuli, and 

disorientation,” as well as partial or complete amnesia. In 

reaching this diagnosis, Dr. Wu testified that she primarily relied 

on her evaluation of Ponti on May 7, 2019, but also reviewed the 
13

transcript of the settlement as well as the motions filed after the 

settlement. She also based her opinion on her impression that 

trial was going well for Ponti up to that point, based on her 

review of the trial transcripts from that day. 

Dr. Wu testified that Ponti was able to “describe a series of 

events in the trial before settlement, but during the settlement, 

he was unable to remember key details of the discussion. He also 

didn’t understand or appreciate the terms of the discussion, 

meaning he had false ideas, actually, that the settlement 

somehow was not binding, because it was oral. He also had ideas 

that agreeing to the settlement somehow would not correspond to 

him having to move.” She also stated that Ponti “described an 

emotional reaction at the time that, to me, signaled that he 

perceived the abruptness of the settlement, like a trauma.”

Dr. Wu acknowledged that all settlements are stressful. 

However, she opined that Ponti’s situation differed because 

earlier in the day, Ponti told her he was hopeful that the case 

seemed to be going well and he was about to start presenting his 

witnesses, but then “there was suddenly a shift in emotion at the 

time of the settlement . . . to a fearful and helpless emotion, and 

it wasn’t something that he could control.” She noted that Ponti 

could recall some of what happened and could answer yes or no 

questions during the settlement, but “his ability to take in the 

series of events, to understand the details and the consequences, 

the alternatives to this agreement, those were all compromised 

because he was experiencing an acute stress reaction.” Dr. Wu 

reported that Ponti had a “distorted sense of time,” and was 

confused about the order of events, and he also “transiently had 

an impaired ability to appreciate the quantities that were 

proposed in the settlement.” Ponti told her he remembered being 
14

offered 25 percent in a prior settlement negotiation and that he 

ultimately got 33 percent, but could not calculate what the 

difference was, although he said “math was his strong suit.” She 

also stated that there could be visible symptoms of an acute 

stress reaction, but they were not required for the diagnosis, nor 

was there any minimum time required. 

During cross-examination, Dr. Wu agreed that an ASR 

could be caused by a life-threatening event, but testified that the 

typical context is “trauma, or a perceived trauma,” and that the 

event did not have to be life-threatening. She explained that it 

was sufficient if the stress was perceived as severe. She related 

Ponti’s statement that “I was dead, it’s like you took out my brain 

and my blood. . . . My wife died again that day,” concluding that 

Ponti perceived the event as “equivalent in severity” to a lifethreatening event. 

Dr. Wu acknowledged that she had never heard of an ASR 

being used to rescind a settlement agreement or contract. 

However, she stated that the difference with this settlement was 

that the “course of events during that trial, with the abruptness 

of the attorney bringing up the settlement proposal, was a shock 

to Mr. Ponti,” coupled with Ponti’s particular vulnerability. She 

could not give exact times when the acute stress reaction started 

or stopped. She opined that the amnesia started sometime “after 

the perceived trauma,” which was when “the trial was supposed 

to continue, and suddenly, there was mention of a settlement.”

The stress reaction was due to the proposal of a settlement and 

its terms, which were different than what he and his attorney 

had previously planned. 

In addition to the perceived trauma, Dr. Wu opined that 

Ponti was susceptible to undue influence based on the “apparent 
15

authority in the relationship with his attorney.” His emotional 

state and his physical state (not eating or sleeping well) 

contributed to his vulnerability. In addition, she testified that 

talking to the judge in chambers reinforced Ponti’s fear and 

contributed to his vulnerability. 

2. Dr. Freedman-Harvey

Sandy called an expert, Dr. Freedman-Harvey, as to Ponti’s 

capacity. Dr. Freedman-Harvey opined that Ponti did not suffer 

from an ASR because, based on his review of Dr. Wu’s report, 

“there was nothing that led to the requirement for a traumatic 

experience to precipitate the symptoms she described.” He 

testified that he was familiar with the diagnosis of ASR as set 

forth in the ICD-10 and ICD-11. He explained that an accurate 

diagnosis of ASR required “an observed sensory trauma, and the 

trauma must be at a scale that is life threatening, or invokes 

danger.” He testified that “all the research on the stress related 

disorders start with a perceived trauma that anyone. . .would 

respond to as a trauma,” such as a mass shooting, fatal car 

accident, or a sexual assault. 

Dr. Freedman-Harvey noted that he had been present in 

court earlier on the day of the settlement, and did not see a 

traumatic experience, nor did he see one described in Dr. Wu’s 

report. He acknowledged that the situation was likely stressful 

for Ponti, but that “the quality of stress is very different from 

what the diagnostic manuals and the classification of conditions 

and disorders calls a trauma, and the trauma is . . . the basis for 

the acute stress reaction.” Dr. Freedman-Harvey could not 

diagnose Ponti because he did not meet with him, but he did not 

believe “it was a proper application of acute stress reaction.” In 

particular, he did not see any indication that Ponti experienced a 
16

“fugue state” or a disconnection with reality. He explained that 

“the types of symptoms that Dr. Wu described, based on Mr. 

Ponti’s interview with her, are stress reaction symptoms, but

they aren’t ones that rise to the level of incapacity.”

Further, Dr. Freedman-Harvey explained that Ponti was 

able to provide enough detail about the settlement proceedings to 

show that “he was processing the issues regarding settlement, he 

was processing the people he was involved with. . . . He may 

have had moments of . . . being in a daze, and that happens when 

you get overwhelmed,” but this was contrasted with an “allblanked-out experience.” He noted that Ponti was able to convey 

to Dr. Wu that he understood possible outcomes of trial and was 

able to weigh risks and benefits. He also noted that Ponti was 

able to recall details of the settlement discussions, including the 

33 percent figure which indicated less of an issue with amnesia 

linked to any traumatic event. Dr. Freedman-Harvey further 

pointed out Ponti’s statement that he went to his car immediately 

after the settlement and emailed his attorney about the 

settlement, which he found not consistent with someone 

experiencing ASR, but rather someone who is “in the here and 

now, they are processing their distress.” He concluded that Ponti 

“was emotionally involved and cognitively involved in the 

settlement decisions, and the process of going through that is 

highly emotional, and that he may have had mixed feelings, he 

may have had buyer’s remorse, he may have had some concerns 

about the process itself, but. . . I don’t see how his ability to 

understand or appreciate what was going on was diminished, or 

that he was unaware that there were risks and benefits to many 

of the decisions and the options. . . . So in my view, he had 

capacity.”
17

On cross-examination, Dr. Freedman-Harvey agreed with 

Dr. Wu that an ASR could be transitory and the symptoms could 

come and go. He also acknowledged that Ponti likely had an 

emotional response, especially to the possibility of having to move 

out of his home, but “that still is not an experience of a trauma 

that would then meet the level required for acute stress 

response.” He rejected the suggestion that the ASR could cover a 

perceived (rather than actual) trauma, explaining that “the 

definition is very specific. There must be an experience, through 

the senses, of a danger. It could be a witnessed danger,” such as 

witnessing someone else get killed, “but that’s not a perception, it 

has to be through the senses, and just being involved in a 

discussion of the type of settlement process, or ‘what am I going 

to be doing if I’m not living at this apartment,’ which can be 

stressful, maybe even a crisis, but it’s not a trauma.” He noted 

that one could have thoughts that “my life is over” in many 

different stressful situations, but “that isn’t the same thing as a 

traumatic experience that you are not witnessing a dangerous, 

near-death, life-threatening event that anyone would react [to] as 

a trauma.” He also clarified that having an incomplete memory 

of events is not the same as an ASR. 

Dr. Freedman-Harvey acknowledged that in his report, he 

had focused on acute stress disorder, which is part of the 

Diagnostic and Statistical Manual (DSM), rather than acute 

stress reaction under the ICD-10. He noted that the two 

diagnoses have some overlap but are not identical. He also 

testified that he does not use the ICD criteria in practice and has 

never treated or diagnosed someone with an ASR. But he had 

worked with people in traumatic stress situations and was 

familiar with the “range of symptoms that come up after a 
18

trauma.” In addition, he also testified that he reviewed the ICD 

criteria and was familiar with them. 

3. Oldman

Oldman, Ponti’s prior attorney, testified under subpoena. 

He declined to answer a number of questions on the basis of 

attorney-client privilege, including the genesis of his request for 

the settlement conference and the content of any conversations 

with Ponti. Oldman testified that at the time of the settlement, 

he had no reason to believe that Ponti did not understand what 

was happening or did not fully understand the terms of the 

settlement agreement. He represented Ponti starting in 2014 

and stated that Ponti was an emotional client. Oldman testified 

that he had been practicing trust and estates law since 1976 and 

dealt with capacity issues every day. 

4. Ponti

Ponti testified as to his mental state prior to and during the 

settlement proceedings. He stated that between the settlement 

conference in November 2018 and the settlement on December 

11, he did not discuss settlement with anyone. He claimed that

after he read the trial brief his attorney prepared, he “could 

hardly wait to get to the trial and present my case.” He felt that 

he would be entitled to “100 percent [of the estate], or somewhere 

between 50 and 75 percent, at least.” When the trial started, he 

was excited but also very emotional, due to the “drama” of the 

past few years and his feeling that he never had a “chance to 

mourn properly my wife” due to the ongoing litigation. Ponti 

testified that he had not been sleeping or eating well during the 

trial. Additionally, on December 10 and 11, he had a head cold 

and “was in very bad shape.”
19

Ponti recalled that around 2:40 p.m. on December 11, his 

attorney stood up and asked the judge for a settlement

conference. Ponti then recalled leaving the courtroom and telling 

his remaining witnesses for the day to go home. He did not recall 

anyone explaining to him the differences between a trial judge 

and a settlement judge. Next, Ponti testified that the two 

attorneys went into the judge’s chambers. When Oldman came 

out, he whispered to Ponti in the hallway.6 Then Ponti went into 

the judge’s chambers. He testified that at that point, he was not 

in agreement with a settlement. He recalled that during the 

conference in chambers, the judge suggested “that I should take 

the settlement, because it’s going to be expensive to continue for 

another two years, and so I was very confused.” He contended 

that he was “very afraid” of the judge and felt helpless. 

Following this conference, Ponti recalled that “[a]t the end, 

there was an on-the-record settlement discussion between the 

attorneys and the judge” with “a lot of legalese that I couldn’t 

follow.” Then, “in the last six seconds, I was asked ‘Do you 

understand,’ and I wanted to say ‘no.’” He continued, “It was all 

very confusing to me, and I just always had a feeling that 

everybody is talking over me, and I’m not there, and I didn’t have 

the strength to say no, and to stop everything. The next thing I 

know, I was across the street in the parking lot, sitting in my car 

for hours.” After he sat in his car and tried “to remember what 

happened,” he tried to contact his attorney around 6:00 p.m., but 

was not able to reach him. Ponti explained that he was trying to 

contact Oldman because he owed him hundreds of thousands of 

6 Ponti asserted attorney-client privilege and therefore did 

not testify to the content of any discussions with Oldman.
20

dollars and was not sure “who was going to pay the legal fees, 

and all that.”

Ponti claimed that he did not recall agreeing to the 

settlement. At the time, he was “afraid out of my mind that I’m 

losing my home of 30 years . . . as well as the hundreds of 

thousands that was owing for these proceedings.” When asked 

whether he “blanked out” during the proceedings, he said that he 

“had moments that I don’t remember,” but “didn’t blackout 

entirely.” He also testified that he was “blanked out” at the time 

he agreed to the settlement on the record and he did not know 

how he was able to agree to it. He also did not recall answering 

the judge’s questions regarding whether he understood and 

agreed to the settlement. When asked during cross-examination 

why he was stressed about having to move out if he did not 

understand the settlement, he responded: “I don’t know. I don’t 

have a good answer for you.” When asked about his statement to 

Dr. Wu that he did not think the settlement was binding, he 

stated: “It was more like it was my hope that I can come back to 

the trial, you know, because everything was against me that day. 

So I was hoping it’s not binding.” He clarified that the “blank 

out” happened right after the settlement issue was raised and 

then continued until after he got to his car. He also testified that 

when Oldman suggested the settlement, his first thought was 

that “my brilliant attorney find [sic] a way to win for me the case 

with only two witnesses.”

7

7Ponti also called two other witnesses who were present in 

the courtroom on December 11, 2018, to testify on his behalf. 

Both testified that when they saw Ponti on December 11, 2018, 

he looked tired and complained of feeling unwell. 
21

Ponti acknowledged that he signed the verification on the 

February 2019 motion to repudiate the settlement agreement. 

When asked about the statement in the motion that he had 

changed his mind, he responded: “[t]hese are the words that an 

attorney could use, and I didn’t realize they are not accurate. I 

didn’t mean to change my mind. What I was telling [his 

attorney] was that I don’t remember portion [sic] of what 

happened that afternoon.”

C. Statement of decision

Following the hearing, Ponti submitted a closing trial brief 

and request for statement of decision. Sandy also submitted a 

closing trial brief. 

The court issued a tentative statement of decision on 

September 18, 2019. Ponti filed objections and Sandy filed a brief 

response. 

The court issued its final statement of decision on October 

30, 2019.8 The court summarized some of the evidence from the 

underlying trial, including testimony from a social worker 

employed by Adult Protective Services who stated that Ponti 

refused to allow her to evaluate Marie’s health or to permit an 

ambulance to take Marie to the hospital. The social worker also 

testified to Marie’s malnutrition and severe dehydration. The 

court noted Ponti’s dispute of these facts, contention that 

“Sandy’s motives related to his own financial interests,” and 

presentation of evidence “whereby the Court questioned why 

Sandy, himself a physician, was absent from caring for his 

8The court sustained in part and overruled in part Ponti’s 

objections, but did not specify which objections it sustained. The 

parties have not raised any issue with these objections on appeal.
22

mother.”

The court also described the events following Oldman’s 

request for a settlement conference: “After both parties (i.e., 

including Ponti himself) and their counsel put their agreement on 

the record for the Court to then participate in a settlement 

conference, notwithstanding that this bench officer 

would...continue to decide the case if the case did not settle, the 

[Court] met with both parties and their counsel together and 

separately in chambers. [¶] The Court recalls there was some 

discussion in chambers with Ponti and Oldman about Ponti’s 

wish to continue to live at the Orange Street property – where he 

has lived for some thirty years. The parties were able, however, 

to quickly reach an agreement that the parties and counsel then 

placed on the record.” The court also found that it had “inquired 

of the parties if they had heard the terms, understood them, had 

enough time to confer with their counsel and if they agreed to the 

terms. . . . The parties, including Ponti, answered in the 

affirmative to each question.”

The court found that Ponti had not established that he 

lacked the capacity to consent to the settlement agreement, 

setting forth seven bases for this conclusion. First, the court 

found that “as reflected on the record, Ponti agreed to holding a 

voluntary settlement conference before it started.” The court 

noted that if Ponti did not agree or “was truly caught off guard,”

then the trial could have continued, and also noted Ponti’s 

familiarity with the process given the prior settlement 

conferences in the case. The court rejected Ponti’s claim that the 

court was “trying to force the parties to settle so it did not have to 

try the case,” and pointed out that the court explained to Ponti 

“the risks involved in holding a settlement conference in front of 
23

the same person who would be deciding the case.”

Second, the court found that Ponti “understood what was 

transpiring during the settlement discussions.” Specifically, the 

court recalled that Ponti raised a concern regarding his continued 

ownership and occupancy of the property, and that Ponti rejected 

Sandy’s initial offer awarding 25 percent of the estate to Ponti, 

and then counter-offered 33 percent, which Sandy accepted. 

Third, the court found that Ponti responded affirmatively 

to its questions regarding whether he heard, understood, and 

agreed to the terms of the settlement, and had sufficient time to 

confer with his attorney. The court “did not observe nor had any 

reason to believe that Ponti was experiencing any lack of 

capacity, duress, surprise, confusion, inability to speak or other 

reason why he was not then voluntarily entering into this 

agreement.” The court further recalled that “Ponti also did not 

express any misgivings about entering into the agreement nor 

made any request for more time to consider whether to enter into 

the agreement.” The court also rejected Ponti’s claim that he was 

unduly influenced by Oldman, finding that relief from an 

agreement based on undue influence required a claim that Ponti 

was influenced by the other party to the agreement. Similarly, 

the court cited as its fourth reason Oldman’s testimony that he 

had no reason to believe Ponti did not appreciate what was 

happening or understand the terms of the agreement when he 

agreed to them. The court found that Oldman “was in the best 

position of any person (other than Ponti) to state what his client 

was then experiencing,” and noted that Ponti was “able to shield”

Oldman’s potentially rebutting testimony about what transpired 

by refusing to waive the attorney-client privilege. 
24

Fifth, the court gave little weight to Dr. Wu’s “speculative”

testimony that Ponti was experiencing an ASR at the time the 

agreement was reached. The court noted that Dr. Wu had “no 

personal knowledge what . . . if anything, Ponti was 

experiencing.” The court also rejected the bases Dr. Wu gave for 

her opinion. In particular, the court found that Dr. Wu “had little 

to no understanding of what in fact occurred during the 

settlement discussions and appeared to primarily just take Ponti 

at his word (five months after the incident in question).” The 

court also stated that Dr. Wu “acknowledged that ASR usually 

occurs where a person has just experienced a life-threatening 

danger or trauma . . . even if it might occur without these sorts of 

events,” and that no comparable event was present. The court 

further stated it did not doubt that Ponti was under stress during 

trial and was sleeping and eating less than usual, “which may 

have added to his difficulties,” but found “Wu’s opinion that this 

scenario makes a litigant unable to enter into an agreement 

lacking in common sense,” given that the court “heard nothing 

about what Ponti was going through that was much different 

from what many litigants likely also go through handling difficult 

cases.” The court reasoned that to suggest such circumstances 

could trigger ASR and claims of incapacitation would be “to 

sanction chaos.” Further, the court found that the agreement 

was simple and therefore “the level of contractual capacity 

needed was low.” As such, the court did not find reasonable the 

suggestion that Ponti did not understand the financial 

consequences of the settlement, particularly where Ponti told Dr. 

Wu that math was his strong suit. Additionally, the court found 

that Dr. Wu “was not able to identify what deficit in mental 

functioning Ponti suffered, as required by Probate Code sec. 
25

810(c) by way of stating what exactly Ponti was unable to do, as 

required by Probate Code sec. 811.”

Sixth, the court cited Dr. Freedman-Harvey’s testimony 

that ASR requires a triggering traumatic experience. The court 

also relied on Dr. Freedman-Harvey’s opinion that “settlement 

discussions in a courthouse would not be considered stressful to 

the level contemplated by the medical literature.”

Seventh, the court found Ponti’s claim that he lacked 

capacity was not credible. The court cited Ponti’s admission in 

his initial motion that he “had simply changed his mind about

having entered into the agreement.” In addition, the court stated 

it understood Ponti’s testimony to be that “he in fact did not lose 

capacity until after reaching the agreement – when he 

purportedly blanked out for a few hours while sitting in his car.” 

The court rejected the claim that Ponti lost capacity during the 

settlement proceeding. The court cited Dr. Wu’s acknowledgment 

that Ponti “did recall the events leading up to and including the 

settlement – including the possibility that was conveyed that he 

might lose everything.” As such, the court “does not understand 

how [Ponti] can contend he did not understand what was 

happening.” Given the progression of the trial and Sandy’s 

evidence, the court rejected Ponti’s suggestion that he did not 

appreciate that there was “at least some risk” that he would not 

win or that “Ponti could still have thought on the fifth day of trial 

the underlying events were not in dispute and there was not 

some possibility the court might accept” Sandy’s version of the 

evidence. In sum, the court found that Ponti had not established 

that he lacked “the ability to understand and appreciate the 

factors related to decision making set out in Probate Code sec. 

812.”
26

The court also concluded that there was no “fundamental 

unfairness” to the settlement agreement that would justify 

rescission on equitable grounds.9 The court accordingly denied 

Ponti’s petition for rescission with prejudice and granted Sandy’s 

motion to enforce the settlement agreement. The court entered 

judgment on November 18, 2019. Ponti timely appealed. 

DISCUSSION

Ponti contends the trial court erred in granting Sandy’s 

motion to enforce the settlement agreement and denying his 

corresponding motion for rescission. His appeal is limited to 

challenging the trial court’s determination that he had capacity 

to enter into the agreement. He does not otherwise dispute that 

the agreement met the requirements under Code of Civil 

Procedure section 664.6.10 We conclude that substantial evidence 

supports the trial court’s determination and therefore affirm.

I. Legal Standards

A. Mental Capacity Standard

Probate Code sections 810 to 81211 set forth the mental 

capacity standard for performing certain legal acts and decisions, 

9This finding is not challenged on appeal.

10Code of Civil Procedure section 664.6, subdivision (a) 

provides, in pertinent part: “If parties to pending litigation 

stipulate . . . orally before the court, for settlement of the case, or 

part thereof, the court, upon motion, may enter judgment 

pursuant to the terms of the settlement. If requested by the 

parties, the court may retain jurisdiction over the parties to 

enforce the settlement until performance in full of the terms of 

the settlement.”

11All further statutory references are to the Probate Code 

unless otherwise indicated.
27

including “contracting, conveying, marrying, making medical 

decisions, executing wills or trusts, and performing other 

actions.” (§ 810, subd. (b).) Section 810, subdivision (a) 

establishes a rebuttable presumption “that all persons have the 

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

decisions.” Section 811, subdivision (a), provides that a person 

lacks capacity when there is a deficit in at least one of the listed 

mental functions and “a correlation [exists] between the deficit or 

deficits and the decision or acts in question.” The statute 

includes four categories of mental functions: (1) alertness and 

attention (§ 811, subd. (a)(1)); (2) information processing (§ 811, 

subd. (a)(2)); (3) thought processes (§ 811, subd. (a)(3)); and (4) 

ability to modulate mood and affect (§ 811, subd. (a)(4)). A deficit 

in one of the listed mental functions “may be considered only if 

the deficit, by itself or in combination with one or more other 

mental function deficits, significantly impairs the person’s ability 

to understand and appreciate the consequences of his or her 

actions with regard to the type of act or decision in question.”

(§ 811, subd. (b).)

Section 812 provides: “Except where otherwise provided by 

law, . . . a person lacks the capacity to make a decision unless the 

person has the ability to communicate verbally, or by any other 

means, the decision, and to understand and appreciate, to the 

extent relevant all of the following: [¶] (a) The rights, duties, and 

responsibilities created by, or affected by the decision[;] [¶] (b) 

The probable consequences for the decisionmaker and, where 

appropriate, the persons affected by the decision[; and] [¶] (c) The 

significant risks, benefits, and reasonable alternatives involved 

in the decision.”
28

Thus, under these sections, a deficit in mental function is 

relevant only to the extent “it significantly impairs the person’s 

ability to appreciate the consequences of his or her actions with 

regard to the type or act or decision in question.” (Andersen v. 

Hunt (2011) 196 Cal.App.4th 722, 730.) As such, “[m]ore 

complicated decisions and transactions thus would appear to 

require greater mental function; less complicated decisions and 

transactions would appear to require less mental function.”

(Ibid.; see also Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1352.)

B. Standard of Review

In general, a trial court’s “‘factual findings on a motion to 

enforce a settlement pursuant to [Code of Civil Procedure] section 

664.6 “are subject to limited appellate review and will not be 

disturbed if supported by substantial evidence.”’” (J.B.B. 

Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 

984, quoting Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) 

“Consistent with the venerable substantial evidence standard of 

review, and with our policy favoring settlements, we resolve all 

evidentiary conflicts and draw all reasonable inferences to 

support the trial court’s finding that these parties entered into an 

enforceable settlement agreement and its order enforcing that 

agreement.” (Osumi v. Sutton, supra, 151 Cal.App.4th at p.

1360.) “‘We may not reweigh the evidence and are bound by the 

trial court’s credibility determinations. Moreover, findings of fact 

are liberally construed to support the judgment.’” (In re Marriage 

of Ciprari (2019) 32 Cal.App.5th 83, 94, quoting Estate of Young

(2008) 160 Cal.App.4th 62, 75–76.)

However, in this challenge, Ponti had the burden of proof to 

establish that he lacked capacity presumed under section 810 

(see Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1040 [finding 
29

party’s burden to prove incapacity because capacity is presumed 

under section 810]), and the trial court found he did not meet 

that burden. In such a circumstance, the question for review is 

not whether substantial evidence supported the trial court’s 

finding. Rather, “‘where the trier of fact has expressly or 

implicitly concluded that the party with the burden of proof did 

not carry the burden and that party appeals, it is misleading to 

characterize the failure-of-proof issue as whether substantial 

evidence supports the judgment. . . . [¶] Thus, where the issue on 

appeal turns on a failure of proof at trial, the question for a 

reviewing court becomes whether the evidence compels a finding 

in favor of the appellant as a matter of law. [Citations.] 

Specifically, the question becomes whether the appellant’s 

evidence was (1) “uncontradicted and unimpeached” and (2) “of 

such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.”’”

(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 

Cal.App.4th 828, 838, quoting In re I.W. (2009) 180 Cal.App.4th 

1517, 1528, overruled in part on other grounds by 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; accord 

Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc.

(2011) 196 Cal.App.4th 456, 465; Almanor Lakeside Villas 

Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769.) We 

apply this standard to Ponti’s challenge.12

II. Analysis

We cannot conclude that the evidence compels a finding in 

12We note that even under a substantial evidence standard, 

we would conclude that substantial evidence supports the trial 

court’s determination of capacity.
30

favor of Ponti as a matter of law. The trial court made detailed 

findings in support of its conclusion that Ponti had the ability to 

appreciate the consequences of the settlement agreement at the 

time he made it. In particular, the court disbelieved Ponti’s claim 

that he did not understand or recall the settlement proceedings. 

In support of this finding, the court pointed to Ponti’s own initial 

statement in his motion to repudiate the settlement, in which he 

stated under oath that immediately after the settlement he 

“changed his mind” and wanted to retract the agreement. 

Although Ponti later testified that he did not understand the 

meaning of this statement, the court was not required to accept 

that explanation.

In addition, the court relied on Ponti’s own statements to 

Dr. Wu and testimony during the evidentiary hearing as evidence 

of his capacity. Ponti claimed he was unable to recall most of the 

settlement conference, including agreeing to the terms on the 

record. But he also provided his recollection of many details of 

the proceedings, starting with his immediate thought after 

Oldman suggested settlement that they must have won, through 

the meetings in chambers with the attorneys, his conference with 

Oldman and determination not to settle, and the subsequent 

meeting with the judge, including his recollection that when the 

court asked him to confirm his understanding and agreement, he 

wanted to say “no” but did not have the strength. Ponti testified 

that after the agreement was on the record, he then “blanked out”

and could not recall how he got out to his car. Ponti also 

contended that at the time he could not understand the terms of 

the settlement or calculate the percentages at issue. But the 

court cited evidence that Ponti discussed rejecting an offer of 25 

percent and making a counteroffer of 33 percent, as well as his 
31

concern that he might have to move out of his home if the 

properties were sold and his fear that he might lose everything. 

This evidence supports the trial court’s finding that Ponti had 

capacity to assess the risks and alternatives involved, 

particularly given the simplicity of the settlement terms.

Moreover, the evidence was undisputed that Ponti 

displayed no signs of confusion or distress during the settlement

conference. The trial court and Oldman—both experienced in 

handling probate and capacity matters—recalled as much (see 

Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97 

[substantial evidence of agreement included court’s own 

recollection of settlement proceedings]), and their recollections 

were supported by the record. Ponti did not raise any issues or 

questions during the settlement conference, but instead provided 

information to the court and answered affirmatively that he 

understood and agreed to the terms of the settlement. As such, 

the weight of the evidence did not require the conclusion that 

Ponti “blanked out” and lost capacity during the settlement 

proceedings.

Ponti relies heavily on Dr. Wu’s findings as the “most 

significant” factor in the court’s decision, and contends the court 

erred in rejecting her opinion. As we have discussed, the trial 

court’s conclusion was supported by evidence apart from the 

expert testimony presented. Moreover, Dr. Wu’s opinion that 

Ponti suffered from an ASR was neither unassailable nor 

undisputed. Significantly, Dr. Wu relied primarily on Ponti’s 

own recitation of his mental state during the settlement 

proceedings as the factual basis for her conclusion that he lacked 

capacity. Thus, the court’s finding that Ponti’s testimony lacked 

credibility undermines the opinions by Dr. Wu based upon that 
32

testimony.

Ponti also contends that Dr. Wu’s diagnosis of ASR was 

undisputed because Dr. Freedman-Harvey was “unqualified” to 

offer an opinion. But Dr. Freedman-Harvey was offered as an 

expert on capacity during the hearing without objection. Further, 

although he did not use the ICD-10 in practice, he testified to his 

familiarity with ASR and explained in detail the causes and 

symptoms. Both experts agreed that ASR could be caused by a 

life-threatening incident, but they disagreed as to the degree of 

severity of the trauma required to trigger the reaction. Notably, 

however, Dr. Wu acknowledged that she was unaware of any 

instances of ASR being applied to rescind a contract or settlement 

agreement. The court was entitled to weigh these competing 

opinions and determine which it found credible.13

In essence, Ponti is urging us to substitute our judgment 

for that of the trial court by giving more weight to Dr. Wu’s 

opinion. We decline to do so. “It is the trial court’s role to assess 

the credibility of the various witnesses, to weigh the evidence to 

resolve the conflicts in the evidence. We have no power to judge 

the effect or value of the evidence, to weigh the evidence, to 

consider the credibility of witnesses or to resolve conflicts in the 

evidence or the reasonable inferences which may be drawn from 

that evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53; 

see also Conservatorship of O.B., supra, 9 Cal.5th at p. 1008 [“an 

13We also agree with the trial court in rejecting Ponti’s 

claim of undue influence by Oldman. Ponti’s citation to Odorizzi 

v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 is 

inapposite, as that case involved a claim for rescission of a 

contract based on undue influence of the other contracting party. 

There is no such claim against Sandy here.
33

appellate court . . . must accept the fact finder’s resolution of 

conflicting evidence; and it may not insert its own views 

regarding the credibility of witnesses in place of the assessments 

conveyed by the judgment”].)

DISPOSITION

The judgment is affirmed. Respondent Sandy Witzling is 

entitled to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.