Estate of Witzling CA2/4 ( 2021 )

Filed 3/16/21 Estate of Witzling CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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, B303449
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BP160490)
v.
RICHARD PONTI,
Appellant.
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.
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.
We refer to individuals with the Witzling surname by first
1
name for clarity.
2
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.”].)
3
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.
4
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
5
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 Freedman-
Harvey, 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.
6
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
7
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
8
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.”
9
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
10
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.”
11
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
12
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
13
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 life-
threatening 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
14
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
15
“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 “all-
blanked-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.”
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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
17
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.”
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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
6Ponti asserted attorney-client privilege and therefore did
not testify to the content of any discussions with Oldman.
19
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.
20
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.
21
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
22
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.
23
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.
24
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.”
25
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.
26
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.”
27
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
28
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.
29
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
30
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
31
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.
32
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.
33