Opinion
A147307
11-02-2018
Estate of BRENDA KEITH REIN, Deceased. PAUL L. REIN, Petitioner and Respondent, v. PAMELA KEITH, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RP10514715, RP10531686, RG10531671)
When she was a few weeks away from dying of cancer, and was taking large amounts of pain medication, decedent Brenda Keith Rein (Brenda) executed a trust, pour-over will and related documents that purported to transfer her property to a trust naming her adult children as beneficiaries and to "disinherit" her husband of almost 20 years. The trial court, sitting as the trier of fact in a bench proceeding, found that Brenda lacked the requisite testamentary capacity and invalidated the will and trust. We agree that the provisions of Probate Code sections 810 to 812, rather than section 6100.5 apply with regards to the trust, and conclude that substantial evidence supports the trial court's ruling. We reject the remaining contentions of appellant Pamela M. Keith (Pamela) and affirm the judgment.
Further undesignated statutory references are to the Probate Code.
I. FACTS AND PROCEDURAL HISTORY
A. Background
Brenda married respondent Paul L. Rein (Paul) in 1991 and stayed married to him, with no separations, until her death in 2010. Brenda had two children from a previous marriage, Pamela and Vincent Keith (Vincent). Pamela is a lawyer who lives out of state and Vincent is an investment banker who lives in London. Paul also had two children from prior marriages, Lisa and Sierra Rein.
Paul was and remains an attorney specializing in disability rights. Brenda was a stockbroker and later a financial advisor, but quit in 1995 and did not work outside the home after that. In 1995, Paul and Brenda purchased their home on Campus Drive and took title as joint tenants. In 1996, they purchased the office condominium on Lakeside drive where Paul maintained his practice and took title as joint tenants. They understood that the properties would remain with the survivor if either one died.
In a holographic will dated June 16, 1997, Paul gave his interest in both properties to his children upon his death.
Brenda suffered from esophageal cancer that had closed off her esophagus and required feeding through a surgical tube implanted in her stomach. On April 8, 2010, Paul took Brenda to the hospital, where her oncologist told her the cancer had metastasized and was terminal. On April 10, 2010, Paul took Brenda to the emergency room and she was admitted to the hospital with pneumonia. She later developed pancreatitis.
On April 12, 2010, at Brenda's request, her close friends Flora Krasnovsky and Shirley Mitchell visited attorney Leon Ainer at his Oakland office. Krasnovsky told Ainer that Brenda had been told by her doctors to put her affairs in order and wanted a will; Ainer suggested a trust after learning that Brenda had assets. Krasnovsky and Mitchell put Ainer in touch with Pamela and they spoke over the phone and exchanged emails. Ainer met with Brenda for the first time at her hospital room on April 12, 2010. Brenda signed a four-page client engagement agreement with Ainer and Pamela ultimately wrote a check for Ainer's $3,000 fee.
On April 14, 2010, Brenda signed six separate documents totaling 122 pages, including an eight-page pour-over will (the Will), a 75-page living trust (the Trust), a seven-page advanced heath care directive, a 25-page durable power of attorney, and two grant deeds purporting to sever the joint tenancies in the Campus Drive and Lakeside Drive properties and transfer Brenda's interest to the Trust. The Trust named Pamela and Vincent as beneficiaries, named Brenda as original and Pamela as successor Trustee, and specifically disinherited Paul. The Will named the Trust as the sole beneficiary. The Trust and the Will were witnessed by Ainer and a notary public who also notarized those documents.
Paul knew that Brenda had met with a lawyer in the hospital but was not provided with copies of the documents until after Brenda's death. He became aware before her death that she had transferred her interest in the Campus Drive and Lakeside Drive properties into the Trust. Paul had previously declined Brenda's request that he give her the name of an estate attorney, purportedly because he did not want to be involved in the selection of counsel as he would be a beneficiary under the will.
On April 15, 2010, Brenda asked that hospice arrangements be made so she could die at home with her husband and two cats. On April 17, 2010, attorney Ainer arranged for Brenda to make a videotaped declaration of her intent in signing the will. Pamela flew in and paid the three people who assisted in producing the video, using checks drawn on Brenda's account and signed by Pamela as attorney in fact.
This Court has reviewed the videotape.
About a week after signing the testamentary documents, Brenda asked Pamela if the documents would prevent Paul from practicing law. Pamela told her no because he could move offices. Brenda left the hospital for home on April 22, 2010, where she was cared for by Mitchell, who was trained as a nurse. There, Brenda asked Mitchell on April 27 or 28 not to medicate her because she needed to speak to Ainer to understand what was involved with her testamentary documents, and expressed that she needed to be sure those documents would not leave Paul homeless or impede his ability to practice. Brenda called Ainer and was on the phone with him for one to two hours. Brenda died on May 2, 2010.
B. The Consolidated Actions
Pamela filed a petition in her capacity as Brenda's personal representative to probate the Will on May 12, 2010. (Estate of Brenda Keith Rein, Case No. RP10-514715.) On August 18, 2010, Paul filed a petition in this action contesting the Will, based on the alleged undue influence and elder abuse of Pamela and Brenda's lack of testamentary capacity. Also on August 18, 2010, Paul filed a separate petition contesting the Trust on identical grounds and a general civil action against Pamela (both in her representative capacity and as an individual) and Vincent. (Contest Re: The Brenda Keith Rein Living Trust dated April 14, 2010, Case No. RP10-531686; Paul Rein v. Pamela M. Keith, Successor Trustee of the Brenda Keith Rein Living Trust et al., Case No. RG10-531671.) On February 26, 2013, Pamela filed a petition against Paul in these cases in her representative capacity seeking to recover the community's interest in Paul's law practice. (First Amended Petition for Order to Return Assets Belonging to Estate of Brenda Keith Rein, Case Nos. RP10-514715, RP10-531686, RG10-531671.) The Court consolidated these actions and held a bench trial on the various claims.
C. Evidence at Trial
1. Dr. David Smith
Dr. David Smith was a physician with a specialty in addictive medicine who was called as an expert witness by Paul. Dr. Smith had reviewed Brenda's medical records and opined that when she signed testamentary documents on April 14, 2010, Brenda was not competent to understand their nature. Concurrently with pneumonia and cancer, Brenda suffered from cerebral anoxia (lack of oxygen to the brain), anxiety, chronic pain, and alcohol withdrawal. At the time of her hospitalization in April 2010 she was an alcoholic who, based on the medical records, was drinking .5 to 1 pint of scotch each day. As a consequence, she suffered from pancreatitis, neuropathy, liver dysfunction and hyperlipidemia. Alcohol addiction can affect mental capacity.
Brenda also suffered from esophageal cancer that had metastasized to her liver, which increased in size causing chest wall pain. As of April 14, 2010, Brenda was taking a combination of opiates, including intravenous morphine, Roxanol through her feeding tube, and a 25-milligram patch of Fentanyl. She was taking a dosage totaling 52 milligrams of morphine equivalent or greater, which would be lethal to a non-tolerant individual. Dr. Smith opined that Brenda was physically dependent on medical opiates in April 2010. This would have affected her capacity, as opiates affect executive function, i.e., an individual's ability to use logic, reason and judgment.
Morphine is a very powerful opiate that relieves physical and emotional pain. Fentanyl is 100 times stronger than morphine or heroin and Roxanol is a longer lasting opiate that stays in the body for eight hours.
Dr. Smith opined that when Brenda signed the Will, the Trust and the grant deeds, she lacked the ability to engage in executive function. There was a period of time in which medications were reduced, so she would have fluctuated between intoxication and withdrawal, leaving her in a vulnerable state. Her understanding would have been compromised, and while she wasn't comatose she couldn't understand the complexities of the documents. Dr. Smith also opined that the task of reading and understanding the estate planning documents was complex and required Brenda to use the higher functions of her brain. Dr. Smith concluded that Brenda was not competent to understand the nature and effect of the documents she signed on April 14, 2010.
2. Nurse Practitioner Jove DeLeon-Luck
Paul's second medical expert, Jove DeLeon-Luck, is a nurse practitioner with hospital nursing experience in acute and chronic pain, pain management, and the review of medical records. Nurse DeLeon-Luck has extensive experience dealing with individuals at the end of their lives who require substantial pain-relieving medications, including observing their mental state. She was qualified by the trial court as an expert on interpretation of medical records with a specialty in acute and chronic pain management, as well as mental capacity with respect to pain-relieving medications.
Nurse DeLeon-Luck testified that Brenda was hospitalized on April 11, 2010 for shortness of breath and confusion and was diagnosed with pneumonia. Brenda was also suffering from anemia, and Nurse DeLeon-Luck testified that she would have fatigue and weakness as a result. Brenda had chronic pain and hypoxia, a lack of oxygen to the tissues. Ms. DeLeon-Luck testified that Fentanyl is 100 times stronger than morphine, that it can be incapacitating and cause respiratory distress, depression, and lethargy, and that Roxanol can cause dizziness, drowsiness, and lightheadedness . She also testified that intravenous morphine has an instantaneous effect, causes respiratory depression, and can make individuals lethargic and forgetful.
Nurse DeLeon-Luck opined that Brenda was dependent on opioids based on the frequency and escalation of the medications she was taking, as well as the fact that additional pain medications such as Fentanyl were administered. She also opined that Brenda lacked the capacity to have read and understood the estate planning documents on April 14, 2010. This opinion was based on her "experience with patients with chronic pain and getting a lot of opioids," because "[t]he severe pain is all that will be . . . in her mind. And reeling from pain is the main concern, especially if you become dependent on the drug," which Brenda was. .
3. Dr. Millett
Pamela called Dr. David Millett, a neurologist, as an expert witness. Based on his review of Brenda's medical records, Dr. Millett opined that she exhibited the essential components of mental capacity during her hospital stay. Dr. Millet noted that Brenda was described multiple times as being awake and alert, exhibited logical thought processes and did not hallucinate. In Dr. Millett's opinion, the opiate medications given to Brenda were for the purpose of controlling her cancer pain and did not affect her capacity. Brenda's mental alertness did not seem to change when administered Fentanyl and Roxanol.
4. Percipient Witnesses to Capacity
Flora Krasnovsky testified that, on April 12, 2010, she completed the "General Information" document provided by Attorney Ainer on behalf of Brenda because she (Brenda) couldn't write or hold a pencil. Shirley Mitchell, who was present for some of the April 12, 2010 meeting between Attorney Ainer and Brenda, told Krasnovsky that Brenda was "weak and kind of in and out, 'in and out' meaning that she was alert and she wasn't alert." However, Mitchell testified that Brenda was able to carry on normal conversations while hospitalized.
Dr. Douglas Chartier, Brenda's primary care physician, visited Brenda twice in the hospital in April 2010 mainly to discuss hospice and her future care. He did not administer any formal tests as to orientation, but thought Brenda knew she was in the hospital and why. Brenda seemed normal and on one visit introduced Dr. Chartier to an "African-American male" who was helping her with estate planning (presumably attorney Ainer). It was typical for hospice patents to be told to put their affairs in order so Dr. Chartier wasn't surprised. Dr. Chartier was not responsible for Brenda's care during that time and did not confer with her treating doctors. "My view hasn't changed because I didn't really have an opinion as to how [Brenda] could understand the complexities of a Will or an estate planning, which can be extremely complicated as I understand. She did - she was aware of her environment. She knew she was speaking to an attorney that specialized in estate planning. So, from that point of view, she seemed to know what she was doing, but whether she can comprehend at the time all the details and subtleties of an estate plan. . . I can't give an opinion."
Attorney Ainer believed that at the time she signed the Will, the Trust and the grant deeds, along with other testamentary documents, Brenda was "filled with capacity and she was free from undue influence and duress and menace."
5. Paul's Relationship with Brenda
The trial court heard considerable evidence regarding Paul's relationship with Brenda, which explained why she would or would not wish to disinherit him. Paul testified to a marriage that had some ups and downs but was strong. Pamela testified that Paul was erratic and did not respect her mother.
The social worker's hospital notes contain inconsistent statements by Brenda herself. The notes from April 17, 2010, taken while Pamela visited, reflect that Brenda stated that her husband "is a violent man," but the next day, when Pamela was not present, the notes indicate that Brenda stated that her husband "is not a violent man." Furthermore, in the videotape, Brenda stated that Paul never hit or threatened her, but immediately thereafter stated, "right now I want it on record. Anything ever happens to me he did, and I don't think he's going to do anything because I think he's scared to death of going to jail."
The court also heard evidence that Brenda had not been sexual during the last ten years of her life and that Paul had had an affair. According to Paul, Brenda knew and approved by urging him at the outset to have an affair. As discussed more fully bellow, the court excluded as a discovery sanction evidence of Brenda's diary, in which she references the affair but does not appear to approve.
Paul testified that he took unopened mail addressed to Brenda to the hospital. Paul opened the envelopes containing Brenda's grant deeds transferring her property to a trust, he asked her: " 'What did you do, stab me in the back?' " She replied: "Oh, no, Paul. I would never do anything to hurt you."
D. Trial Court's Ruling
The trial court issued a 74-page statement of decision, reciting all of the relevant facts and finding that Brenda lacked the necessary capacity when she executed the testamentary documents on April 14, 2010. The court reasoned as follows: (1) the issue was governed by sections 810 to 812, which set forth a higher standard for determining who had a capacity to execute testamentary documents than section 6100.5, which describes the capacity necessary to make a will; (2) the testimony of Dr. Smith and Nurse DeLeon-Luck establish that Brenda lacked capacity under this higher standard; (3) additional evidence contained in the medical records and the testimony of percipient witnesses show Brenda lacked testamentary capacity when she signed the documents; and (4) Pamela's evidence did not require a different conclusion.
The court credited the opinions of Dr. Smith and Nurse DeLeon-Luck over that of Dr. Millett, noting that the tests of alertness underlying Dr. Millett's opinion were cursory and Dr. Millett was not designated as an expert in the field of drugs' effects on mental capacity, which was Dr. Smith's specialty. The court specifically ruled that the videotape made by Brenda on August 17, 2010 "lacked evidentiary value" as to her capacity on August 14, when she executed the testamentary documents. It also ruled that if it had upheld the Will and Trust, it would have concluded that paragraph 1.03(c) of the Trust, which provided that all community property would retain its community nature during Brenda and/or Paul's lifetime, entitled Paul at minimum to the Campus Drive and Lakeside Drive properties during his lifetime.
The court rejected the other claims of Pamela and Paul.
Pamela ultimately did not prevail on her claims against Paul, and Paul prevailed only on the claim that the Will, the Trust and the grant deeds should be set aside because Brenda lacked capacity. Claims unrelated to capacity are not at issue on appeal and we discuss them only in passing.
II. DISCUSSION
A. Sufficiency of the Evidence
Pamela argues the judgment must be reversed because substantial evidence does not support the trial court's determination of Brenda's incapacity. She agrees that we assess her claim by applying the substantial evidence standard, under which "our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted; see Estate of Young (2008) 160 Cal.App.4th 62, 76.) Applying the required deference to the trial court's ruling, there was substantial evidence of incapacity.
Section 810 sets forth a rebuttable presumption that persons have the capacity to be responsible for their acts and decisions. Section 811 sets out the elements of incapacity: "(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question: [¶] (1) Alertness and attention, including, but not limited to, the following: [¶] (A) Level of arousal or consciousness. [¶] (B) Orientation to time, place, person, and situation. [¶] (C) Ability to attend and concentrate. [¶] (2) Information processing, including, but not limited to, the following: [¶] (A) Short- and long-term memory, including immediate recall. [¶] (B) Ability to understand or communicate with others, either verbally or otherwise. [¶] (C) Recognition of familiar objects and familiar persons. [¶] (D) Ability to understand and appreciate quantities. [¶] (E) Ability to reason using abstract concepts. [¶] (F) Ability to plan, organize, and carry out actions in one's own rational self-interest. [¶] (G) Ability to reason logically. [¶] (3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following: [¶] (A) Severely disorganized thinking. [¶] (B) Hallucinations. [¶] (C) Delusions. [¶] (D) Uncontrollable, repetitive, or intrusive thoughts. [¶] (4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances. [¶] (b) A deficit in the mental functions listed above 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. [¶] (c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment. . . ." Section 812 provides: "Except where otherwise provided by law, including, but not limited to, Section 813 and the statutory and decisional law of testamentary capacity, 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. [¶] (c) The significant risks, benefits, and reasonable alternatives involved in the decision."
The trial court appropriately imposed the mental capacity standard set forth in sections 810 to 812. (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1351; Andersen v. Hunt (2011) 196 Cal.App.4th 722, 728 (Anderson).) "[S]ections 810 to 812 do not set out a single standard for contractual capacity, but rather provide that capacity to do a variety of acts, including to contract, make a will, or execute a trust, must be evaluated by a person's ability to appreciate the consequences of the particular act he or she wishes to take. More complicated decisions and transactions thus would appear to require greater mental function; less complicated decisions and transactions would appear to require less mental function." (Andersen at p. 730.)
Although we have some question as to whether the Will was governed by the lower standard for capacity set forth in section 6100.5, which applies explicitly to wills, there would be no practical effect to so finding, where the Will was a pour-over will that named the Trust as beneficiary. Pamela does not contend a standard other than that set forth in sections 810 to 812 should have been applied to the Trust. --------
Dr. Smith and Nurse DeLeon-Luck both reviewed the relevant medical records and concluded Brenda lacked capacity when she signed the testamentary documents. They based their opinions on Brenda's medical condition and consumption of pain medication, as documented in the medical records they reviewed, and the trial court was entitled to credit this testimony and reject the evidence to the contrary. "The credibility and weight of the expert testimony was for the [trier of fact] to determine, and it is not up to us to reevaluate it. [Citations.]" (People v. Flores (2006) 144 Cal.App.4th 625, 633.) A challenge based on the sufficiency of the evidence has been described as "daunting" (In re Marriage of Higinbotham (2003) 203 Cal.App.3d 322, 328), particularly in a case in which two qualified experts testified in support of the judgment and the trier of fact—here, the trial court—weighed the various claims carefully and issued at 74-page statement of decision.
Pamela cites a number of cases for the proposition that a physician's failure to personally examine the testator "has been repeatedly held to prevent the expert's opinion from being substantial evidence" of incapacity. None so broadly or categorically stated. Rather, under the facts of each case cited, the expert's failure to personally examine the testator or criminal defendant was one factor in determining a lack of substantial evidence. (Estate of Teed (1952) 112 Cal.App.2d 638, 644; Estate of Powers (1947) 81 Cal.App.2d 480, 485-486; In re Estate of Little (1920) 46 Cal.App. 776, 787-788; People v. Bassett (1968) 69 Cal.2d 122, 145-146.) These cases, which involve different facts, do not require us to disregard the testimony of Dr. Smith and Nurse DeLeon-Luck simply because they did not personally examine Brenda when they each reviewed her relevant medical records in their entirety and were well-aware of her medical conditions and the drugs she was taking. This was not a case in which the prevailing party's experts based their opinions on speculation or conjecture. (Contrast Jennings v. Palomar Pomerado Health Systems, Inc, (2003) 114 Cal.App.4th 1108, 1117-1121.)
B. Paragraph 1.03(c) of Trust
Pamela argues the trial court erred because it relied on paragraph 1.03(c) of the Trust to show that Brenda lacked capacity. Labeled "Community Property," that paragraph provides, "Any community property transferred to my trust, including the income from property and the proceeds from the sale or exchange of property, will retain its character as community property during my life and the life of my husband to the same extent as if it had not been transferred to my trust." Pamela complains that paragraph 1.03(c) refers to community property and hence has no bearing on her conveyance of the Campus Drive and Lakeside Drive properties, which were originally held by Brenda and Paul in joint tenancy. (Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385 [property cannot be held as both community property and in joint tenancy]; Estate of Blair (1988) 199 Cal.App.3d 161, 167 [although property held under joint tenancy may be shown to be in fact community property, a written transmutation is necessary].) We disagree that reversal is required on this basis.
The trial court did not directly rely on paragraph 1.03(c) when determining Brenda's incapacity to execute the testamentary documents, the basis for its decision. As the Statement of Decision makes clear, the trial court interpreted paragraph 1.03(c) to mean that if the Trust were upheld, Paul would be entitled to at least a life estate in the Campus Drive and Lakeside properties in accordance with the documents. The Trust was not upheld, so this "belts and suspenders" approach to ascertaining its meaning—and Brenda's intent—was beside the point. Thus, even if we assume the trial court misconstrued the import of paragraph 1.03(c), we would not find it reasonably probable that a result more favorable to Pamela would be reached absent the error. (Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The trial court did cite paragraph 1.03(c) as evidence that Brenda believed she was giving Paul a life estate in two pieces of real estate while purporting to transfer her interest in that property to the Trust for Pamela and Vincent's benefit, during Paul's lifetime. This evidence was cumulative of evidence that Brenda had told Flora Krasnovsky she wanted Paul to keep the properties, at least during his lifetime. It was not reasonably likely to change the trial court's determination that Brenda lacked capacity when she signed the testamentary documents, which was based primarily on evidence concerning Brenda's medical condition and the drugs she was taking.
C. Videotape Evidence
Pamela argues the judgment must be reversed because the trial court arbitrarily rejected evidence of the videotape that was taken three days after Brenda executed the testamentary documents. We disagree.
The court concluded the videotape "represents a lost opportunity for Pamela and Vincent to have Brenda to look into the camera and demonstrate to the world that she possessed the capacity to understand her testamentary documents when she executed them." The court also noted that the videotape was taken three days after the testamentary documents were signed, that Pamela had flown in the day before the video was made and flew out immediately after it was made, and that the questions in the videotape were leading. "Put simply, the videotape sheds no light on Brenda's mental state on April 14, 2010, the date the testamentary documents were signed. The facts indicate that Brenda's purported state of mind was manufactured for the situation and the videotape was prepared under circumstances demonstrating its lack of trustworthiness. The testimony of Brenda's close friends is that Brenda did not wish to disinherit Paul or sever the joint tenancies in the Campus Park Property and the Lakeside Property during Paul's lifetime. In the face of this credible evidence, the videotape lacks evidentiary weight and is not probative evidence of Brenda's testamentary capacity or her true intentions."
The trier of fact is free to reject any evidence that it does not find persuasive, and the court of appeal will affirm so long as that rejection was not arbitrary. (See Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 369.) From its comments, it is clear the trial court did not reject the videotape arbitrarily.
D. Exclusion of Brenda's Diary as Discovery Sanction
Pamela argues the trial court abused its discretion in excluding evidence of a handwritten diary of Brenda's in which she was critical of Paul and noted he was having an affair. Pamela argues that this evidence was important because it showed that Brenda had good reason to disinherit Paul. We conclude the trial court did not prejudicially err in excluding the evidence.
The trial court excluded the diary because it was not produced in discovery. It had been found by Shirley Mitchell after Brenda's death, and provided to Pamela in 2014, who then turned it over to her counsel. Through an admitted oversight, counsel did not turn the diary over for inspection and copying until January or February, several months after the discovery cut-off date, although several pages of the diary were attached by Pamela as opposition to Paul's motion for summary judgment in February 2014. The diary was the subject of a motion in limine filed by Paul seeking its exclusion on Evidence Code section 352 and hearsay grounds, but the court did not reach these issues.
We review a discovery sanction for abuse of discretion and will reverse " ' "only for arbitrary, capricious, or whimsical action." ' " (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) There was no abuse here. Rather, by imposing an evidence preclusion sanction, the trial court simply prevented Pamela from producing at trial evidence that she did not produce during discovery. (See Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389 [affirming exclusion of evidence as discovery sanction].)
Moreover, we would find any error in excluding the diary to be nonprejudicial in that it is not reasonably probable Pamela would have obtained a better result had the diary been admitted. (See Saxena v. Goffney (2008) 159 CalApp.4th 316, 334-335.) The testamentary documents were invalidated due to Brenda's lack of mental capacity at the time she signed them in April 2010. The diary entries were between December 2004 and August 2007, and were not directly probative of Brenda's mental state in 2010. To the extent the diary entries might have shown a motive to disinherit Paul, Brenda's capacity to do so was a distinct question. And, the evidence that Brenda knew Paul was having an affair was cumulative to Paul's own admission of the same and Shirley Mitchell's testimony that Brenda knew about the same and was concerned. The trial court was not operating under any misapprehension about the effect of the affair on Brenda, noting during closing argument that Brenda's knowledge of the affair "[d]oesn't mean that she liked it. Doesn't mean that she approved of it. She may have accepted it, and maybe she knew about it." It is not reasonably probable that considering evidence of the diary would have changed this conclusion.
III. DISPOSITION
The judgment is affirmed. Respondent shall receive costs on appeal.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.