Silvester v. Estate of Niparko CA2/7 ( 2022 )

Filed 6/20/22 Silvester v. Estate of Niparko CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DOMINIC SILVESTER, B301926
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC574789)
v.
ESTATE OF JOHN KIM
NIPARKO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Holly J. Fujie, Judge. Reversed and remanded.
Dentons US LLP, Ronald D. Kent, Michael J. Duvall,
Susan M. Walker, for Plaintiff and Appellant.
Berkes Crane Robinson & Seal LLP, Robert H. Berkes,
Steven M. Crane, Steven M. Haskell, for Defendants and
Respondents.
_______________________
INTRODUCTION
Appellant Dominic Silvester is a former patient of
physician John Kim Niparko, an ear specialist who treated
Silvester over several months for tinnitus (ringing in his ears).
Silvester contends that while he was in a vulnerable state during
treatment, Dr. Niparko, now deceased, improperly solicited
Silvester to make charitable donations to Johns Hopkins
Hospital. Silvester further asserts Niparko concealed that
Silvester’s condition had worsened under Niparko’s care because
Niparko wanted Silvester to continue donating large sums of
money.
Silvester sued Niparko’s estate and the personal
representative of Niparko’s estate for fraud and constructive
fraud. After an eight-day trial, the jury entered a general verdict
in favor of the personal representative. Silvester appeals the
judgment on numerous grounds, including the trial court’s
refusal to give a constructive fraud jury instruction requested by
Silvester, several evidentiary rulings made by the trial court and
the summary adjudication order precluding Silvester’s punitive
damages claim, which he contended was limited to the estate’s
insurance policy limits. We conclude that although there was no
instructional error, evidentiary error by the trial court requires a
new trial, and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Niparko Begins To Treat Silvester for Tinnitus
Silvester is the CEO and founder of Enstar Group, a
publicly-traded international insurance company. In 2010, he
2
was 50 years old and resided in Cape Town, South Africa.1
Niparko was an otolaryngologist (ear, nose and throat specialist)
sub-specializing in diseases of the ear. In 2010 Niparko was a
professor and interim chair of the Department of Otolaryngology
at Johns Hopkins Hospital in Baltimore, Maryland.
In October 2010, Silvester began experiencing persistent
ringing in his ears. A general practitioner diagnosed him with
post-viral tinnitus. On November 4, 2010, Silvester traveled to
Johns Hopkins for a previously-scheduled “executive physical”—a
concierge service provided by Johns Hopkins for busy executives
who need to coordinate multiple tests and examinations. While
there, Silvester conferred with Niparko and another
otolaryngologist, Dr. Agrawal, who both concurred with the
diagnosis of post-viral tinnitus and prescribed an over-the-
counter nasal decongestant. Silvester emailed Niparko and
Agrawal several times in November 2010 with concerns and
questions about his condition and asked Niparko to be his
primary medical provider.
Johns Hopkins identified Silvester as a potential donor
with an “extremely large” financial capacity, and Niparko
provided one of Silvester’s emails to the principal development
officer of Johns Hopkins’ Department of Otolaryngology for the
department’s donor list.
In December 2010, Silvester returned to Johns Hopkins to
see Niparko about his continuing tinnitus. Niparko
recommended Silvester regularly use steroid dexamethasone
drops in his middle ear via grommet tubes that would be placed
in his eardrums. Silvester underwent a procedure to have the
1 He also maintained residences in England, Bermuda,
Dublin, New York City and Aspen, Colorado.
3
grommet tubes placed in his ears. His wife and a doctor in Cape
Town assisted him with administering the dexamethasone drops.
2. Silvester Pledges a Charitable Donation to Johns Hopkins
and Makes an Initial Payment
In December 2010 Silvester sent Niparko two cases of wine.
Niparko responded by email thanking him and asked if Silvester
would consider making “a tax-deductible, charitable contribution
to help support our work. We want to offer more effective
treatments of inner-ear disease.”
James Kelley, principal development officer for the Johns
Hopkins Otolaryngology Department, spoke with Silvester about
making a philanthropic donation to the Department. On
December 18, 2010, Silvester wrote to Niparko: “I am 100%
committed to supporting your work. . . . When I reflect on the
work you and your colleagues do, it makes me feel quite
unfulfilled in what I have done. . . . Jamie provided me with a
document on the research you do and the funds needed. I have
already spoken with our CFO on how the company can make tax
efficient donations but I will donate personally as well . . . it will
be my absolute pleasure to support you and your work. Actions
always speak louder than words and you will see action!”
Silvester added that the tinnitus was the “most traumatic thing
that ha[d] ever happened to [him]” and that he had “hit depths of
despair on a few occasions over the past few months that [he]
never thought was possible for [him].” Niparko responded: “We
would be honored to partner with you on our research programs,
but know that getting your present symptoms addressed is our
first priority. Let’s focus on that right now.” Niparko forwarded
Silvester’s email to Kelley, who responded, “Sounds like we’ve got
some success coming in the future. Great job!”
4
On January 6, 2011, Silvester wrote to Niparko: “[T]hank
you as always for your help and advice. I really enjoyed our
conversation and thank you for your hospitality. You have my
total 100% commitment to fund the $2.5 million dollars and I
fully expect it will be more. Forget my ears, seeing you in action
has opened my eyes to a number of things that I was blind to
before.” Silvester expressed that he felt “hugely appreciative”
and “lucky” to have Niparko helping him at this time.
On January 10, 2011, Silvester entered into a donor
agreement with Johns Hopkins to fund a chair for the
Department of Otolaryngology for $2.5 million. Silvester then
made what was supposed to be the first of seven annual $357,000
payments to Johns Hopkins.2 On January 27, 2011, Silvester
wrote to Niparko: “I now look upon it as one of my missions in
life that I will help your funding and to further your research.
My plan is that the funds for the chair that I have committed to
already will be substantially increased.”
3. Niparko Performs Surgery on Silvester and Diagnoses Him
With Wegener’s Granulamotisis, and the Two Discuss
Further Charitable Donations
In the first quarter of 2011, Silvester returned to Niparko
for dozens of treatments. By February 2011, the ringing in
Silvester’s left ear had subsided considerably. However, pus
began draining from Silvester’s right ear and his hearing in that
ear—which had been his better-hearing ear—diminished. He
was put on oral antibiotics in Cape Town and, on March 11, 2011,
was treated at Johns Hopkins with intravenous antibiotics. The
2 Silvester never made another payment or donation to
Johns Hopkins or to Niparko.
5
apparent infection ceased but was replaced with an idiosyncratic,
intractable inflammation in his right middle ear (polypoid
disease), which did not respond to further antibiotics.
In early 2011, Niparko was a candidate to become
permanent chair of the Department of Otolaryngology. During
Silvester’s visits to Johns Hopkins for treatment, he and Niparko
regularly discussed Niparko’s pending candidacy for department
chair and strategized on how to direct Silvester’s donations to
Niparko’s work. In March 2011, Niparko told Silvester he had
not been promoted. Silvester responded that he had been
awaiting Johns Hopkins’ decision on Niparko’s promotion to
announce his plan to donate $10 million toward a program or
facility directed by Niparko, regardless of location.
On March 16, 2011, Niparko performed a mastoidectomy of
Silvester’s right ear to surgically remove the inflammation. This
surgery was ultimately repeated five more times because the
inflammation did not subside and threatened to further diminish
Silvester’s hearing. Niparko also continued to treat Silvester
with dexamethasone drops. Neither the surgery nor the
injections improved Silvester’s tinnitus or hearing loss. Niparko
told Silvester the steroid injections were not the cause of his right
ear problems.
In August 2011, Silvester wrote to Niparko and said he was
thinking about potential places Niparko might practice if he left
Johns Hopkins. Silvester also noted he had an idea for additional
funding.
In late 2011, after consulting with other doctors at Johns
Hopkins, Niparko told Silvester his condition might be due to
Wegener’s Granulamotisis, an uncommon autoimmune disease.
In January 2012, Niparko consulted with rheumatologist
6
Dr. Philp Seo at Johns Hopkins. In February 2012, Seo began to
treat Silvester with an anti-cancer drug, methotrexate, to
restrain the inflammation.
In mid-January 2012, Niparko sent Silvester a proposal for
an ear research institute that Niparko would oversee and which
Silvester would fund. Niparko asked Silvester to send a letter
supporting the proposed institute to Johns Hopkins’ leadership;
Niparko and his friend Nancy Mellon drafted the letter, which
Silvester signed.
Between November 2010 and January 2013, Silvester
consulted with and obtained second opinions from approximately
a dozen other doctors around the world regarding his tinnitus,
ear inflammation and treatment protocol. Niparko provided
many of those physicians with copies of Silvester’s medical
records and information about his diagnosis and course of
treatment. In February 2012, Silvester was referred to Dr.
Subinoy Das, an ear, nose and throat doctor who had experience
treating patients with Wegener’s. Das concluded Silvester’s
condition was caused by an infection, not by Wegener’s. Silvester
spoke with Niparko about Das’s opinion but decided to continue
with Niparko’s recommended course of treatment.
In April 2012, pathologist Dr. Edward McCarthy at Johns
Hopkins identified a “vasculitis” in Silvester’s middle ear tissue
sample. Niparko concluded this finding confirmed a working
diagnosis of atypical Wagener’s. Niparko told Silvester,
“Wegener’s is notoriously difficult to diagnose⎯you do not have
systemic Wegener’s.” Seo agreed that atypical Wegener’s was a
reasonable working diagnosis and prescribed cytoxin and
prednisone instead of methotrexate, telling Silvester that this
was the “big gun” treatment.
7
In August 2012, Silvester saw Dr. Gary Hoffman, a
rheumatologist at the Cleveland Clinic, for a second opinion
Niparko forwarded a summary of Silvester’s medical records to
Hoffman, who examined Silvester and conducted lab testing of
his blood. Hoffman told Silvester he did not have Wegener’s or
any autoimmune disorder. On August 13, 2012, Silvester and
Drs. Niparko, Hoffman, McCarthy, Seo and Brendan Venter (a
Cape Town general practitioner and Silvester’s personal friend)
had a conference call. Hoffman opined the various surgeries had
caused the vasculitis identified by McCarthy. Hoffman concluded
Silvester did not have any form of Wegener’s and advised that he
should stop taking medication for it. Hoffman also discovered
Silvester’s mercury blood level was “alarmingly high” and
informed Niparko that neurologic symptoms, including auditory
impairment such as tinnitus, could result from mercury
poisoning. Silvester’s elevated mercury levels resulted from his
“generous fish diet.” He followed Hoffman’s advice and
underwent chelation therapy to rid himself of the mercury;
Silvester’s physical symptoms improved. By December 2012,
Niparko concluded Silvester did not have Wegener’s.
From December 2012 through January 2013, Silvester
exchanged several emails with Niparko and asked for
clarification regarding Niparko’s treatment decisions and queried
why Niparko’s medical opinions differed from other opinions
Silvester received.
In 2013, Silvester’s right ear was repaired at Harvard
Hospital, though he still suffers from a hearing impairment in
that ear.
8
4. Silvester Sues Johns Hopkins and Niparko
On June 23, 2014, Silvester sued Johns Hopkins and its
physicians and employees for medical negligence in Maryland
state court. On March 6, 2015, Silvester filed the underlying
action in the Los Angeles Superior Court for
“fraud/deceit/concealment/misrepresentation” and constructive
fraud against Niparko. On December 7, 2015, Silvester settled
the Maryland action and released Johns Hopkins and its
employees, including Niparko, from all medical negligence
claims, though the settlement carved out the California fraud
claims against Niparko. Two months later, Johns Hopkins wrote
to Silvester that they were refunding him $357,143 and relieving
him of any financial obligations for further donations. Silvester
refused the return of his money to ensure he could obtain the
documents he had subpoenaed.
Niparko died from cancer on April 25, 2016. On July 29,
2016, Silvester filed his second amended complaint against “the
Estate of John Kim Niparko, Deceased.” Pursuant to Probate
Code sections 550 and 552 and Code of Civil Procedure section
9390, Silvester served the second amended complaint on MCIC
Vermont LLC, Attorney-in-Fact for MCIC Vermont (a Reciprocal
Risk Retention Group) (MCIC), the insurer providing the defense
for Niparko before he died. MCIC thereafter appeared in the
action as the “Estate.”
Niparko’s spouse, Angela Niparko, filed a probate case on
July 29, 2016, and the court named her the personal
representative of the estate. Silvester then filed his operative
third amended complaint, which proceeded against both “the
Estate of John Kim Niparko, Deceased,” and “Angela Niparko, as
9
the Personal Representative of the Estate of John Kim Niparko,
Deceased.” Angela as the personal representative appealed.
On October 12, 2016, Silvester filed a claim against the
estate in probate court, which Angela rejected. On January 11,
2017, the parties stipulated Silvester would not seek to recover
punitive and/or exemplary damages from Angela.
The parties agreed to trifurcate the trial into phase I on
liability and compensatory damages; then, if Silvester prevailed
in phase I, phase II would involve Silvester’s claim for punitive
damages against the estate; and phase III would involve his
claim against MCIC and/or any other insurers or indemnitors for
insurance coverage or indemnification for any damages awarded.
5. Summary Adjudication
On March 9, 2018, the trial court issued its Order on
Respondent’s Motion for Summary Adjudication, holding, in part,
that no punitive damages may be awarded against either
Respondent or MCIC.
6. Jury Trial and Verdict
The court ruled on the parties’ proposed jury instructions
and motions in limine during pretrial hearings on November 27,
2018, May 15, 2019, and June 6, 2019.
The eight-day jury trial began on June 10, 2019.
Respondent agreed to a general verdict form in exchange for
Silvester’s written agreement that he would not seek to execute
on any estate assets other than insurance and indemnity
protection.
The jury was instructed on three claims: constructive fraud,
actual fraud by intentional misrepresentation, and actual fraud
by concealment. The jury began deliberating on June 21, 2019,
10
and returned a unanimous general verdict in favor of Respondent
the same day.
Judgment was entered on July 23, 2019. Silvester timely
filed a motion for a new trial, which the court denied.
This appeal followed.
DISCUSSION
1. The Trial Court Did Not Err in Refusing To Give Silvester’s
Proposed Constructive Fraud Jury Instruction
a. Silvester’s proposed constructive fraud instruction
Silvester’s primary contention on appeal is that the trial
court erred in refusing to use the following constructive fraud
jury instruction that he proposed before the final pre-trial
hearing:
“Dominic Silvester claims that he was harmed because
Dr. Niparko took advantage of their fiduciary (doctor-patient)
relationship. To establish this claim, Dominic Silvester must
prove the following:
1. a. Dominic Silvester was vulnerable, and
b. Dr. Niparko took advantage of Dominic Silvester’s
vulnerability in soliciting money from him; or
2. Dr. Niparko misled Dominic Silvester by providing
Dominic Silvester with inaccurate and/or incomplete information
or by failing to disclose some or all of the information that:
Dominic Silvester did not need the medical treatment he was
receiving or that Dominic Silvester did not have the disease for
which he was being treated, or that Dominic Silvester’s
medical treatment was harming and not helping him, or that
Dr. Niparko’s treatment had caused Dominic Silvester harm, or
11
that Dr. Niparko was not acting in Dominic Silvester’s best
interests;
3. Dominic Silvester was harmed; and
4. Dr. Niparko’s conduct was a substantial factor in causing
Dominic Silvester’s harm.”
Respondent objected to the proposed inclusion of language
that would allow the jury to find Silvester was “vulnerable,”
given the parties’ undisputed fiduciary relationship as doctor and
patient, which established Niparko owed a fiduciary duty to
Silvester as a matter of law. In response, Silvester asserted that
he and Niparko had a separate “confidential relationship which is
driven by the vulnerability and the taking advantage of the
vulnerability of the other party” and that this was “a subset of
constructive fraud.” Respondent argued there was no need to ask
the jury to decide the factual question whether there was a
confidential relationship between Niparko and Silvester.
Respondent explained that inquiry would only serve as an
alternate path to establishing a fiduciary duty if no legally
recognized fiduciary relationship exists between the parties, and
“they’ve already satisfied the duty issue by virtue of the fact that
there is a fiduciary duty owed by Dr. Niparko to Mr. Silvester
because of the physician patient relationship.”
The trial court delayed its decision to conduct further
research, stating: “I don’t know that you need to prove [a
confidential relationship] if you’ve already got the fiduciary
relationship. That’s what I’m going to be looking at. . . . But what
I’m saying is that, if you are required to have one or the other
and you’ve got one, and you don’t need to prove the other, why do
you need to have it in there?”
12
b. The final constructive fraud, fiduciary duty and
reasonable reliance jury instructions
Over Silvester’s continued objections, the trial court gave
the jury the following constructive fraud instruction, which
omitted the alternative instruction for the jury to determine
whether Silvester was “vulnerable”:
“It is stipulated that Dominic Silvester and Dr. Niparko
were in a fiduciary (doctor-patient) relationship. Dominic
Silvester claims he was harmed because Dr. Niparko misused the
fiduciary relationship, which constitutes constructive fraud. To
establish this claim, Dominic Silvester must prove the following:
1. That Dr. Niparko knew or should have known that
Dominic Silvester did not need the medical treatment he was
receiving; or that Dominic Silvester did not have the disease for
which he was being treated; or that Dominic Silvester’s medical
treatment was harming and not helping him; or that Dr.
Niparko’s treatment had caused Dominic Silvester harm; or that
Dr. Niparko was not acting in Dominic Silvester’s best interests.
2. Dr. Niparko misled Dominic Silvester by providing him
with inaccurate or incomplete information; or by failing to
disclose some or all of the above information.
3. That if accurate and complete information had been
provided, or omitted information had been disclosed, Dominic
Silvester reasonably would have behaved differently.
4. Dominic Silvester was harmed; and
5. Dr. Niparko’s conduct was a substantial factor in
causing Dominic Silvester’s harm.”
The trial court separately gave an explanatory instruction
on fiduciary duty (CACI No. 4100), stating, “A doctor owes what
is known as a fiduciary duty to his or her patient. A fiduciary
13
duty imposes on a doctor a duty to act with the utmost good faith
in the best interests of his or her patient.” The court also stated
in its reasonable reliance instruction (CACI No. 1908): “Because
of their doctor/patient fiduciary relationship, it is presumed that
Dominic Silvester reasonably relied on Dr. Niparko’s misleading
actions, statements and omissions, though this presumption may
be overcome by other evidence. The defendant bears the burden
of rebutting this presumption by proving with substantial
evidence that Dominic Silvester could not have reasonably relied
on Dr. Niparko’s misleading actions, statements and omissions.”
c. Standard of review
“Appellate courts apply a de novo standard of review when
determining whether the trial court’s jury instructions were
proper because the propriety of a jury instruction is a question of
law.” (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606,
617.)
d. Law of constructive fraud
Constructive fraud is distinct from actual fraud as “a
unique species of fraud applicable only to a fiduciary or
confidential relationship.” (Assilzadeh v. California Federal
Bank (2000) 82 Cal.App.4th 399, 415 (Assilzadeh); accord,
Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1131 (Prakashpalan).) “‘Fiduciary’ and
‘confidential’ relationships are relationships existing between
parties to a transaction wherein one party is duty-bound to act
with the utmost good faith for the benefit of the other.” (Brown v.
Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 959-960
(Brown).) “‘The essence of a fiduciary or confidential relationship
is that the parties do not deal on equal terms because the person
14
in whom trust and confidence is reposed and who accepts
that trust and confidence is in a superior position to exert
unique influence over the dependent party.’” (Richelle L. v.
Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271
(Richelle L.).)
Constructive fraud “‘arises on a breach of duty by one in a
confidential or fiduciary relationship to another which induces
justifiable reliance by the latter to his prejudice.’” (Estate of
Gump (1991) 1 Cal.App.4th 582, 601 (Gump), quoting Odorizzi v.
Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 129, italics in
Gump.) Civil Code section 1573, subdivision (1), defines
constructive fraud as “any breach of duty which, without an
actually fraudulent intent, gains an advantage to the person in
fault, or anyone claiming under him, by misleading another to his
prejudice, or to the prejudice of anyone claiming under him[.]”
(Civ. Code, § 1573, subd. (1); see Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 981, fn. 13 (Engalla); Barrett v.
Bank of America (1986) 183 Cal.App.3d 1362, 1368 (Barrett).)
“The breach of duty referred to in section 1573 must be one
created by the confidential relationship, which is one of the facts
constituting the fraud.” (Byrum v. Brand (1990) 219 Cal.App.3d
926, 937.) “‘“In its generic sense, constructive fraud comprises all
acts, omissions and concealments involving a breach of legal or
equitable duty, trust, or confidence, and resulting in damages to
another. [Citations.] Constructive fraud exists in cases in which
conduct, although not actually fraudulent, ought to be so
treated—that is, in which such conduct is a constructive or quasi
fraud, having all the actual consequences and all the legal effects
of actual fraud.” [Citation.]’ [Citations.]” (Prakashpalan, supra,
223 Cal.App.4th at p. 1131.)
15
The special relationship of the parties is what establishes
the duty and forms the basis for constructive fraud, which
“‘usually arises from a breach of duty where a relation of trust
and confidence exists.’” (Gump, supra, 1 Cal.App.4th at p. 601,
quoting Barrett, supra, 183 Cal.App.3d at p. 1369.)
“‘Constructive fraud allows conduct insufficient to constitute
actual fraud to be treated as such where the parties stand in a
fiduciary relationship.’” (Engalla, supra, 15 Cal.4th at p. 981, fn.
13.) It differs from actual fraud “primarily in the type of conduct
which may be treated as fraudulent, such as a failure to disclose
material facts within the knowledge of the fiduciary.” (Gump, at
p. 601; see Michel v. Moore & Associates, Inc. (2007) 156
Cal.App.4th 756, 762 [“A fiduciary’s failure to share material
information with the principal is constructive fraud, a term of art
obviating actual fraudulent intent”]; Tyler v. Children’s Home
Society (1994) 29 Cal.App.4th 511, 519-520 (Tyler) [“Unlike
actual fraud and undue influence, which generally involve active
misconduct, such as an intent to deceive or misrepresentation by
the defendant, a constructive fraud claim allows relief for
negligent omissions constituting breach of duty in a confidential
relationship”].)
Additionally, in a fiduciary relationship it is presumed that
a beneficiary reasonably relies on the fiduciary. (Edmunds v.
Valley Circle Estates (1993) 16 Cal.App.4th 1290, 1302
(Edmunds) [“a representation in the context of a trust or
fiduciary relationship creates a rebuttable presumption of
reasonable reliance subject to being overcome by substantial
evidence to the contrary”]; Gump, supra, 1 Cal.App.4th at p. 602
[“the reliance element is relaxed in constructive fraud to the
extent we may presume reasonable reliance upon the
16
misrepresentation or nondisclosure of the fiduciary, absent direct
evidence of a lack of reliance”].) Thus, “[i]n its application,
constructive fraud not only expands the range of conduct which
may be characterized as fraudulent, it also presumes the element
of reliance absent substantial evidence to the contrary.”
(Edmunds, at p. 1302, citing Gump, at pp. 601–602.)
e. Because Niparko had an undisputed fiduciary duty to
Silvester, the jury did not need to find the parties had a
confidential relationship giving rise to a fiduciary duty
Silvester argues that he and Niparko had a fiduciary
relationship arising from their doctor-patient relationship and a
legally distinct confidential relationship based on Silvester’s
particular vulnerability and intense trust in Niparko. Silvester
argues their interactions reflected a relationship that was “far
more than an ordinary doctor-patient relationship,” providing an
“alternative legal basis” for a constructive fraud claim based on
confidential relationship. We reject Silvester’s contention that
the jury’s independent finding of a confidential relationship
would have provided an alternative path to establishing liability
for his constructive fraud claim.
Fiduciary and confidential relationships each “ordinarily
arise[] when one party reposes a confidence in the integrity of the
other, and the other voluntarily accepts that confidence.”
(Brown, supra, 168 Cal.App.4th at pp. 959-960.) “Both
relationships give rise to a fiduciary duty, that is, a duty ‘to act
with the utmost good faith for the benefit of the other party.’”
(Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141,
1160 (Persson).) However, they differ in that “fiduciary relations
arise out of certain canonical relationships that are legally
defined and regulated,” whereas confidential relations “do not fall
17
into well-defined categories of law” but nevertheless “give[] rise to
a fiduciary duty” due to the vulnerability of one party to the other
under the circumstances. (Richelle L., supra, 106 Cal.App.4th at
p. 270.) “Technically, a fiduciary relationship is a recognized
legal relationship such as guardian and ward, trustee and
beneficiary, principal and agent, or attorney and client
[Citation.], whereas a ‘confidential relationship’ may be founded
on a moral, social, domestic, or merely personal relationship as
well as on a legal relationship.” (Id. at p. 271; accord, Hudson v.
Foster (2021) 68 Cal.App.5th 640, 663.)
Accordingly, although “a fiduciary relation in law is
ordinarily synonymous with a confidential relation” (Herbert v.
Lankershim (1937) 9 Cal.2d 409, 483; Wolf v. Superior Court
(2003) 107 Cal.App.4th 25, 29 (Wolf)), the converse is less
straightforward. Rather, “[a] confidential relation may exist
where there is no fiduciary relation” (Persson, supra, 125
Cal.App.4th at p. 1160; see Oakland Raiders v. National Football
League (2005) 131 Cal.App.4th 621, 631, fn. 7 [noting “a fiduciary
duty may arise out of a confidential relationship that is not one
that is considered a legally recognized fiduciary relationship”].).
In the absence of a recognized fiduciary relationship, the
existence of a confidential relationship giving rise to a fiduciary
duty is determined by the factfinder. (Persson, supra, 125
Cal.App.4th at pp. 1160-1162.)
The doctor-patient relationship is an archetypal fiduciary
relationship. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740,
748 [“The doctor-patient relationship is a fiduciary one and as a
consequence of the physician’s ‘fiducial’ obligations, the physician
is prohibited from misrepresenting the nature of the patient’s
medical condition”]; Mathis v. Morrissey (1992) 11 Cal.App.4th
18332, 339 [“a physician has a fiduciary duty to disclose all
information material to the patient’s decision” to consent to
treatment]; Moore v. Regents of the Univ. of California (1990) 51
Cal.3d 120, 129 [recognizing doctor-patient relationship is a
fiduciary relationship].) By its nature, the fiduciary relationship
between doctor and patient is inherently a “confidential
relationship,” as courts have long recognized. (See Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 899 [physician has a “fiduciary and
confidential relationship with his client or patient”]; Sanchez v.
South Hoover Hospital (1976) 18 Cal.3d 93, 97 [“the fiduciary and
confidential relationship created between physician and patient”
imposes duty of disclosure]; Stafford v. Shultz (1954) 42 Cal.2d
767, 777 (Stafford) [“the confidence growing out of the
relationship of doctor and patient” imposes fiduciary duty to
disclose material medical information].) Thus, “[t]he duty of
disclosure is fiduciary in nature because of the confidential
patient-physician relationship, the duty of disclosure is measured
by fiduciary standards (not limited by medical standards), and
the physician subjects himself to liability should he withhold
facts necessary to a total disclosure [Citation.].” (Nelson v.
Gaunt (1981) 125 Cal.App.3d 623, 634, italics added.)
Distilled to its essential elements, a claim for constructive
fraud requires (1) a fiduciary or confidential relationship giving
rise to a fiduciary duty; (2) breach of fiduciary duty; (3) justifiable
reliance; and (4) resulting injury. (See Tyler v. Children’s Home
Society (1994) 29 Cal.App.4th 511 at p. 520 [“Constructive fraud
arises on a breach of duty by one in a confidential or fiduciary
relationship to another that induces justifiable reliance by the
latter to his or her prejudice. Actual reliance and causation of
19
injury must be shown.”].)3 As a result, to prove constructive
fraud a plaintiff must establish a fiduciary relationship with the
defendant⎯either because that relationship is already legally
recognized (e.g., the doctor patient fiduciary relationship) or
because the parties had a confidential relationship that created a
fiduciary relationship.
Here, given the inherent “confidential relationship existing
between a patient and his physician” (Stafford, supra, 42 Cal.2d
at p. 779) and the parties’ stipulation that Silvester and Niparko
were in a fiduciary relationship, a relationship imposing a
fiduciary duty was established as a matter of law. As Silvester
concedes, the fiduciary duty owed in either a traditional
fiduciary relationship or confidential relationship is the same:
the party in the more powerful position must “act with the
utmost good faith for the benefit of the other.” (Brown, supra,
168 Cal.App.4th at pp. 959-960.) No legally distinct duty arises
from one versus the other, and Silvester cites no authority that
suggests otherwise. Therefore, we agree with the trial court that
3 Certain cases set forth the elements of constructive fraud
as “(1) a fiduciary or confidential relationship; (2) nondisclosure
(breach of fiduciary duty); (3) intent to deceive, and (4) reliance
and resulting injury (causation).” (See, e.g., Prakashpalan,
supra, 223 Cal.App.4th at p. 1131, quoting Younan v. Equifax
Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.) However, as noted
in the use notes to CACI No. 4111 for constructive fraud claims
under Civil Code section 1573, “these elements conflict with the
statute in at least two ways. First, the statute clearly states that
no fraudulent intent (or intent to deceive) is required. Second,
the statute is not limited to nondisclosure; it extends to
information that is disclosed, but misleading.” (Judicial Council
of Cal., Civ. Jury Instns. (2020 ed.) Directions For Use to CACI
No. 4111.)
20
the jury was not required to find a confidential relationship
creating a fiduciary duty to establish such a duty existed for
purposes of a constructive fraud claim.
Because it was undisputed that Niparko owed a fiduciary
duty to Silvester, Silvester’s proposed instruction “would be
redundant and confusing.” (Ford v. Polaris Industries, Inc. (2006)
139 Cal.App.4th 755, 775.) Where an element of a cause of action
is already established as a matter of law or its finding is
subsumed by another test, it is not necessary for the jury to
independently determine that element. (See ibid. [where finding
of a jet ski design defect established increased risk of harm as a
matter of law, there was “no need” for special instruction also
requiring plaintiffs to prove the defect increased risk]; Mayes v.
Bryan (2006) 139 Cal.App.4th 1075, 1080 [in wrongful death
action, “trial court did not err in refusing to instruct the jury on
‘but for’ causation because the jury was instructed on ‘substantial
factor’ and ‘but for’ is subsumed under the substantial factor
test”; “instruction would have been redundant, with the result
that the omission did not prejudice defendants”]; Johnson v.
Matson Nav. Co. (1958) 163 Cal.App.2d 336, 339 [where
“instructions requested by appellant were redundant, . . . their
refusal was not error”].) There was no need for Silvester’s
proposed instruction, and the trial court did not err in refusing to
give it.
f. The jury instruction did not improperly limit the scope of
Silvester’s constructive fraud claim
Silvester also argues the court’s instruction improperly
limited the scope of his constructive fraud claim solely to
misrepresentation and omission about Silvester’s medical care
rather than for conduct relating to his solicitation of donations.
21
We disagree. The constructive fraud instruction required the
jury to find Niparko “knew or should have known that Dominic
Silvester did not need the medical treatment he was receiving; or
that Dominic Silvester did not have the disease for which he was
being treated; or that Dominic Silvester’s medical treatment was
harming and not helping him; or that Dr. Niparko’s treatment
had caused Dominic Silvester harm; or that Dr. Niparko was not
acting in Dominic Silvester’s best interests,” that Niparko “misled
Dominic Silvester by providing him with inaccurate or incomplete
information; or by failing to disclose some or all of the above
information”; and that Silvester reasonably would have behaved
differently “if accurate and complete information had been
provided, or omitted information had been disclosed”; Silvester
was harmed, and Niparko’s conduct was a substantial factor in
that harm. (Italics added.)
The trial court also gave a reliance instruction (CACI No.
1907) instructing that “Dominic Silvester relied on any one of
Dr. Niparko’s misrepresentations or omissions if: 1. The
misrepresentation or omission substantially influenced Dominic
Silvester to make financial pledges and payments to Johns
Hopkins and to benefit Dr. Niparko; and 2. He would probably
not have made the financial pledges and payments, or continued
his relationship with Dr. Niparko, if Dr. Niparko had not made
the misrepresentation or omitted the information. It is not
necessary for a misrepresentation or omission to be the only
reason for Dominic Silvester’s actions.”
Silvester contends that as instructed the jury could
“consider only whether Mr. Silvester had been lied to by Dr.
Niparko about his medical care.” However, the constructive
fraud instruction permitted the jury to find that Niparko was
22
liable because he was not acting in Silvester’s best interests and
caused Silvester harm. This instruction is in line with Civil Code
section 1573, subdivision (1), which states constructive fraud
consists of “any breach of duty which, without an actually
fraudulent intent, gains an advantage to the person in fault, or
anyone claiming under him, by misleading another to his
prejudice, or to the prejudice of any one claiming under him[.]”
(Italics added.) The constructive fraud instruction, particularly
when read in tandem with the reliance instruction, confirms the
jury was properly informed that it could find (if the facts
supported such a finding) that Niparko’s conduct in soliciting
donations was a breach of his duty to Silvester.
2. The Trial Court’s Evidentiary Rulings
a. Standard of review
“Trial court rulings on the admissibility of evidence,
whether in limine or during trial, are generally reviewed for
abuse of discretion.” (Pannu v. Land Rover North America, Inc.
(2011) 191 Cal.App.4th 1298, 1317, accord, Zhou v. Unisource
Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.) “The trial
court’s error in excluding evidence is grounds for reversing a
judgment only if the party appealing demonstrates a ‘miscarriage
of justice’—that is, that a different result would have been
probable if the error had not occurred.” (Zhou, at p. 1480; see
Evid. Code, § 354; Code Civ. Proc., § 475.) Under Evidence Code
section 353, a verdict also “shall not be reversed due to the
erroneous admission of evidence unless: ‘(a) There appears of
record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear the
specific ground of the objection or motion . . . .’” (Atkins v.
Strayhorn (1990) 223 Cal.App.3d 1380, 1390; see Evid. Code,
23
§ 353, subd. (a).) If a trial court’s decision to admit or exclude
evidence involves a question of law, we review that decision de
novo. (Zhou, at p. 1476.)
b. The trial court prejudicially abused its discretion when it
excluded evidence regarding Silvester’s vulnerability and
emotional distress, and medical ethics evidence
i. Silvester’s vulnerability and emotional distress
Silvester contends the trial court erroneously excluded
evidence of his vulnerability and emotional distress, including
when it granted Respondent’s Motion in Limine No. 1 to exclude
evidence of Silvester’s emotional distress during his relationship
with Niparko, and when it sustained relevance objections4 to his
medical expert’s testimony regarding his observations of Silvester
and the expert’s opinion that medication caused Silvester to be
vulnerable and impaired, both behaviorally and emotionally.
Silvester asserts the trial court’s error was exacerbated by
allowing Respondent to introduce testimony that Silvester was
not vulnerable or behaviorally impaired during their
relationship, while not allowing Silvester to introduce contrary
evidence.5
The court also precluded Silvester’s expert from showing
the jury a slide containing the word “vulnerability,” stating:
4 “Relevant evidence” is that which has “any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.”
5 The court did permit Silvester to present some evidence on
this point, including the testimony of both Silvester and his wife
who described his deteriorated physical and emotional state.
24
“Vulnerability is not going to be at issue in this case because of
the fact that we have an automatic fiduciary duty due to the
physician patient relationship, so I would suggest you perhaps
delete that, okay.” Silvester argued that his vulnerability was
relevant to reliance as well as to the existence and breach of
Niparko’s fiduciary duty. The trial court stated that
vulnerability “relates to the issue of whether or not you create the
relationship that gives rise to this cause of action. And in this
case you have an automatic one which is not necessarily [sic] to
be separately proven and has already been established. . . . [The]
ruling has not changed. . . . You already have a breach of
fiduciary duty aspect of this, which is again already established
and so therefore you—it doesn’t enhance. It doesn’t make it
different. It didn’t make it better. . . .”
On appeal, Silvester argues evidence of his vulnerability
and emotional distress was relevant to proving the existence and
breach of a confidential relationship for purposes of constructive
fraud and relevant to justifiable reliance for actual fraud, on
which the jury was also instructed.6 Specifically, Silvester
6 The trial court gave the following instructions on actual
fraud:
“[CACI] 1900. Intentional Misrepresentation
In addition to his constructive fraud claim on which I just
instructed you, Dominic Silvester claims that Dr. Niparko made a
false representation that harmed him. To establish this claim,
Dominic Silvester must prove the following:
1. That Dr. Niparko represented to Dominic Silvester that a fact
was true;
2. That Dr. Niparko’s representation was false;
25
asserts evidence of his vulnerability was “relevant to foreclosing
any attempt by Respondent to rebut Mr. Silvester’s justifiable
reliance required for actual fraud, . . . .” He argues the trial
court’s rulings “were particularly prejudicial because they skewed
the evidence by receiving Respondent’s evidence to rebut Mr.
3. That Dr. Niparko knew that the representation was false
when he made it, or that he made the representation recklessly
and without regard for its truth;
4. That Dr. Niparko intended that Dominic Silvester rely on the
representation;
5. That Dominic Silvester reasonably relied on Dr. Niparko’s
representation;
6. That Dominic Silvester was harmed; and
7. That Dominic Silvester’s reliance on Dr. Niparko’s
representation was a substantial factor in causing Dominic
Silvester’s harm.”
“[CACI] 1901. Concealment
As a third and separate claim, Dominic Silvester also claims that
he was harmed because Dr. Niparko concealed certain
information. To establish this claim, Dominic Silvester must
prove the following:
1. That Dr. Niparko intentionally failed to disclose certain facts
to Dominic Silvester;
2. That Dominic Silvester did not know of the concealed facts;
3. That Dr. Niparko intended to deceive Dominic Silvester by
concealing the facts;
4. That had the omitted information been disclosed, Dominic
Silvester reasonably would have behaved differently;
5. That Dominic Silvester was harmed; and
6. That Dr. Niparko’s concealment was a substantial factor in
causing Dominic Silvester’s harm.”
26
Silvester’s vulnerability, yet excluding evidence Mr. Silvester’s
evidence of his vulnerability.” (Italics in original.)
For the reasons articulated above, we find the court did not
abuse its discretion when it excluded the vulnerability and
emotional distress evidence that Silvester attempted to introduce
for the purpose of establishing that he had a confidential
relationship with Niparko that created a fiduciary duty.
However, we agree with Silvester that evidence of his
vulnerability and emotional distress is relevant to his justifiable
reliance, which is an element of both actual and constructive
fraud.
When a fraud claim is based on a misrepresentation or
nondisclosure by a fiduciary in a superior position of knowledge
or power, reasonable reliance is presumed: A representation by
the party in the superior position in the fiduciary relationship
“creates a rebuttable presumption of reasonable reliance subject
to being overcome by substantial evidence to the contrary.”
(Edmunds, supra, 16 Cal.App.4th at p. 1302.) Here, the jury was
instructed that there was a fiduciary relationship between
Niparko and Silvester, and was instructed to presume that
Silvester reasonably relied on Niparko’s representations, unless
Niparko rebutted the presumption with substantial evidence.
Respondent sought to rebut that presumption by successfully
introducing testimony that Silvester was not vulnerable or
behaviorally impaired, including:
•Kelley’s testimony that Silvester seemed “lucid” with “his
wits about him,” and never appeared “vulnerable” or “brow
beaten” by Niparko;
•Testimony of Johns Hopkins Medicine Dean Edward
Millier that Silvester did not have diminished capacity;
27
•Testimony of Johns Hopkins infectious disease doctor
Paul Auwaerter about his “impression” of Silvester as physically
fit;
•Testimony of defense expert Dr. Robert Jackler that
Silvester was intelligent and able to absorb information given to
him;
•Seo’s testimony that Silvester suffered little or no side
effects from his chemotherapy drugs; and
•Hoffman’s testimony on cross-examination that he had
not observed Silvester display mental incapacity.
The trial court erred when it foreclosed Silvester from
presenting evidence regarding his vulnerability and emotional
distress, which was offered to disprove the evidence respondent
presented to rebut the presumption of Silvester’s reasonable
reliance on Niparko. This included Silvester’s medical expert’s
observations of Silvester and his opinion that steroids and
chomotherapy drugs made Silvester vulnerable and impaired him
behaviorally and emotionally. The evidence of Silvester’s
vulnerability was relevant to the jury’s determination regarding
whether Respondent succeeded in overcoming the presumption
that Silvester reasonably relied on Niparko.
ii. Medical ethics evidence
The trial court denied Respondent’s Motion in Limine No. 5
to exclude the testimony of Silvester’s medical ethics expert, Dr.
Erin Egan, regarding codes of ethics and professional guidelines
applicable to physicians’ fundraising from patients and HIPAA
privacy requirements. However, the court ruled Egan could not
testify about whether Niparko violated applicable medical ethics
standards while simultaneously treating and fundraising from
Silvester. The trial court explained Egan would not be allowed to
28
reach conclusions that were properly in the purview of the trier of
fact but “certainly can testify about what these standards are,
but can’t say: I’ve decided this is what happened and that’s a
violation of, okay? Other than that, I think that it’s an
appropriate use of expert testimony . . . .” The court confirmed it
was “fair game to ask Dr. Egan: How should this situation [have]
been handled, if consistent with the norms?” if it was a “complete
hypothetical.”
At trial, the court reiterated Egan could not testify
regarding whether Niparko had acted unethically when he
simultaneously treated and solicited money from Silvester,
commenting, “[T]his is not a case for breach of medical ethics.
This is a fraud and concealment case.” The court stated: “Our
claims are fraud, fraud based on concealment, and constructive
fraud. That requires misrepresentation or concealment of
material facts, not violations of HIPAA, not violations of ethical
issues.” The trial court also stated that HIPAA violations were
“irrelevant.”
Silvester argues the court erroneously prevented Egan from
expressing her opinions that Niparko’s solicitation of Silvester for
donations (when Niparko was Silvester’s treating physician)
violated applicable medical ethics standards. Silvester also
asserts that when Niparko shared information about Silvester’s
medical condition and shared private communications between
Silvester and Niparko with third parties, Niparko violated
Silvester’s privacy and HIPAA rights. Silvester contends
evidence that Niparko violated medical ethical guidelines “is
relevant to establish Niparko’s breach of the ‘special,’
‘confidential’ and ‘trust’ aspects of their relationship” and
29
relevant to proving Niparko took advantage of Silvester’s
“vulnerability” while soliciting money from him.
A breach of medical ethics may be a breach of fiduciary
duty (see Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th
917, 930-931 [triable issue of fact whether medical clinic
breached its fiduciary duty by violating medical ethics code]), if
that breach of fiduciary duty results in “misleading another to his
prejudice” (Civ. Code, § 1573). Accordingly, evidence that
Niparko’s solicitation activities violated medical ethics standards
is relevant, and the trial court abused its discretion by
prohibiting Egan from opining whether Niparko had violated
ethical guidelines.
As previously discussed, Silvester may have been able to
establish Niparko was liable for constructive fraud under Civil
Code section 1573 if the jury found that Niparko was not acting
in Silvester’s utmost best interests and misled Silvester to his
harm. If the jury found that Niparko violated medical ethics
standards in his solicitation of Silvester, there is a reasonable
chance the jury would have reached a verdict in Silvester’s favor.
It is probable that the jury would have reached a different
conclusion if the court had not erred, and instead had permitted
Silvester to present evidence regarding his vulnerability and
emotional distress, as well as medical ethics evidence. The trial
court’s exclusion of that evidence was a prejudicial abuse of
discretion requiring a new trial.
iii. The trial court did not err in excluding evidence
of insurance
Silvester contends the trial court abused its discretion by
denying Silvester’s motion in limine to permit reference to
Niparko’s insurance and granting Respondent’s motion in limine
30
to exclude references to indemnity or insurance protecting the
estate. Silvester argues he was prejudiced because he was
prevented from introducing evidence that MCIC was the insurer
of the estate and any recovery would first come from insurance or
other indemnity obligations protecting the estate, leaving the
jury with the impression he was pursuing the assets of a grieving
widow.
Evidence Code section 1155 makes evidence of a
defendant’s liability insurance inadmissible to prove negligence
or other wrongdoing. “The purpose of this statute is to prevent
the prejudicial use of evidence of liability insurance[.]”
(Industrial Indemnity Co. v. Mazon (1984) 158 Cal.App.3d 862,
865.) Evidence of a defendant’s insurance coverage generally “‘“is
regarded as both irrelevant and prejudicial to the defendant.”’”
(Blake v. E. Thompson Petroleum Repair Co. (1985) 170
Cal.App.3d 823, 830.) There is a substantial risk of prejudice to a
defendant from the introduction of evidence the defendant is
insured for the harm he or she allegedly caused—“[a]ny such
evidence would have an obvious potential to prejudice the jury’s
determination of the insured’s liability.” (Moradi–Shalal v.
Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 311.)
Here, although the parties agreed Silvester would not seek
to execute on any estate assets other than insurance and
indemnity protections, that agreement was not material to
whether the trial court abused its discretion in its in limine
rulings because the parties did not reach that agreement until
the last day of trial.7 During the motions in limine, it was
7 Although the trial court, during the hearing on the in
limine motions, told counsel they could raise the issue again if
“the world has changed,” Silvester did not renew his in limine
31
possible that Silvester could recover damages from estate
property (over policy limits) because Silvester named Niparko’s
widow (the personal representative of the estate) as a defendant.
(Prob. Code, § 553 [stating “[u]nless the personal representative
is joined as a party, a judgment in the action . . . does not
adjudicate rights by or against the estate”].)
Silvester also argues the trial court prejudicially erred
when it prevented him from using the fact of Niparko’s
indemnification by Johns Hopkins’ insurer to impeach the
impartiality of Johns Hopkins-related witnesses. “Trial courts,
for obvious reasons, have generally kept evidence from the jury
that a defendant had insurance coverage on the involved liability.
However, every rule has its exceptions, and ‘(f)acts tending to
show interest, bias or motive on the part of a witness may always
be brought out on cross-examination even though it may thereby
be disclosed that the defendant was protected by insurance.’”
(Brainard v. Cotner (1976) 59 Cal.App.3d 790, 795, quoting Hart
v. Wielt (1970) 4 Cal.App.3d 224, 231 (1970).) Silvester provides
no explanation how Niparko’s indemnification by Johns Hopkins’
insurer would tend to show interest, bias, or motive on the part of
Johns Hopkins-affiliated witnesses.
We conclude the trial court did not abuse its discretion
when it excluded evidence of insurance under Evidence Code
section 1155.
request to permit reference to Niparko’s insurance after he
entered into the agreement not to execute on estate assets.
32
iv. Silvester forfeited the argument that the trial
court erred in excluding evidence of Niparko’s
character
Silvester contends that four witnesses (Angela Niparko,
Nancy Mellon, Dean Miller and Dr. Warren Ross) were
improperly allowed to testify to Niparko’s good character.
Evidence of a person’s character “generally is inadmissible when
offered to prove his or her conduct on a specified occasion.” (Evid.
Code, § 1101.) At trial Silvester did not object to the testimony of
any of these witnesses as inappropriate character evidence. He
argues he preserved his objections by filing his Motion in Limine
No. 1 (Exclude Evidence of Decedent’s Reputation or Character,)
noting “[a] motion in limine to exclude evidence is normally
sufficient to preserve an issue for review without the necessity for
defendant to renew an objection at the time the evidence was
offered.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th
1155, 1184 [objections preserved on appeal where applicable
motion in limine was denied and party also renewed its specific
objections at trial]).
We disagree that Silvester sufficiently preserved his
objections. In ruling on Silvester’s Motion in Limine no. 1, the
trial court stated: “I’m not expressly granting or denying it, but
I’m telling you the limitation is going to be based on a case-by-
case or question-by-question analysis, all right?” Although “‘“[a]n
attorney who submits to the authority of an erroneous, adverse
ruling after making appropriate objections or motions, does not
waive the error in the ruling by proceeding in accordance
therewith and endeavoring to make the best of a bad situation for
which he was not responsible”’ [Citations.]” (Mary M. v. City of
Los Angeles (1991) 54 Cal.3d 202, 212–213), here the trial court
33
reserved its ruling on this issue, asserting it would determine the
admissibility of character evidence on a case-by-case basis during
questioning at trial. It was incumbent on Silvester to specifically
object to inadmissible character evidence during the trial. (Evid.
Code, § 353 [objection to evidence must be “timely made and so
stated as to make clear the specific ground of the objection or
motion”].)
Silvester argues the trial court overruled his relevance
objection to Ross’s testimony about Niparko’s candidacy for a
chair position with USC, and the court denied his motion to
strike Ross’ testimony based on hearsay and relevance. He also
notes that he objected to Angela Niparko’s testimony based on
relevance, under section 352 and as calling for testimony to the
ultimate fact whether Niparko would not have acted
fraudulently; he then moved to strike, and his motion was
denied.
However, Silvester’s objections below were not the same
ones he now makes on appeal. To satisfy Evidence Code section
353, subdivision (a), the objection or motion to strike must be
both timely and specific as to its basis. An objection to evidence
must generally be preserved by specific objection at the time the
evidence is introduced; the opponent cannot make a ‘placeholder’
objection stating general or incorrect grounds (e.g., ‘relevance’)
and revise the objection later . . . .” (People v. Demetrulias (2006)
39 Cal.4th 1, 21-22 [objection based on relevance, foundation,
speculation, or nonresponsiveness “does not, in itself, alert the
trial court to the claim that the testimony objected to is
inadmissible character evidence”].) “What is important is that
the objection fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the
34
objecting party believes the evidence should be excluded, so the
party offering the evidence can respond appropriately and the
court can make a fully informed ruling. If the court overrules the
objection, the objecting party may argue on appeal that the
evidence should have been excluded for the reason asserted at
trial, but it may not argue on appeal that the court should have
excluded the evidence for a reason different from the one stated
at trial.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
Silvester’s objections “neither mentioned Evidence Code
section 1101 nor asserted that the evidence constituted
inadmissible character evidence.” (People v. Valdez (2012) 55
Cal.4th 82, 130 [objections that evidence was “irrelevant,
cumulative, lacking in foundation, or prejudicial . . . were
insufficient to preserve for appeal the claim that the evidence
was inadmissible under Evidence Code section 1101, subdivision
(a)”].) Silvester did not accurately and timely object to what he
characterizes as the trial court’s improper admission of character
evidence.
3. The Trial Court Did Not Err In Its Order Granting
Summary Adjudication on Silvester’s Punitive Damages
Claim
In granting summary adjudication on Silvester’s punitive
damages claim, the trial court held that “no punitive damages
may be awarded against the decedent’s Estate, even if MCIC is to
pay the judgment.” Silvester maintains this ruling erroneously
conflates the estate (as insured by MCIC) and the personal
representative of the estate. Relying on Probate Code sections
550 through 554 (governing claims against decedents covered by
insurance), Silvester contends Code of Civil Procedure section
377.42 only prohibits recovery of punitive or exemplary damages
35
against a deceased defendant’s personal representative and not
against an insurance company covering the deceased defendant’s
estate. We conclude the plain language of Probate Code section
552 mandates that claims against decedents covered by
insurance must proceed “in the same manner as if the claim had
been brought against the personal representative,” and nothing
in the law suggests that liability for punitive or exemplary
damages should be determined differently than it would be
against the personal representative.
a. Standard of review
We review de novo the trial court’s ruling on a motion for
summary adjudication. (Jacks v. City of Santa Barbara (2017) 3
Cal.5th 248, 273; Doe v. Lawndale Elementary School Dist. (2021)
72 Cal.App.5th 113, 124.) We also “review questions of statutory
construction de novo. Our primary task ‘in interpreting a statute
is to determine the Legislature’s intent, giving effect to the law’s
purpose.’” (Akopyan v. Superior Court of Los Angeles County
(2020) 53 Cal.App.5th 1094, 1098, quoting California Building
Industry Assn. v. State Water Resources Control Bd. (2018) 4
Cal.5th 1032, 1041.) “We give the words of the statute ‘a plain
and commonsense meaning’ unless the statute specifically defines
the words to give them a special meaning.” (MacIsaac v. Waste
Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th
1076, 1083, quoting Flannery v. Prentice (2001) 26 Cal.4th 572,
577.) In so doing, “‘“we do not construe statutes in isolation, but
rather read every statute ‘with reference to the entire scheme of
law of which it is part so that the whole may be harmonized and
retain effectiveness.’”’” (Smith v. Superior Court (2006) 39
Cal.4th 77, 83; accord, People v. Gonzalez (2017) 2 Cal.5th 1138,
1141 [“‘[W]e consider the language of the entire scheme and
36
related statutes, harmonizing the terms when possible.’
[Citations.]”)
b. Code of Civil Procedure section 377.42’s ban on recovery
of punitive or exemplary damages applies equally to
actions against a personal representative and actions
against the estate under Probate Code 550
Code of Civil Procedure section 377.42 provides, “In an
action or proceeding against a decedent’s personal representative
or, to the extent provided by statute, against the decedent’s
successor in interest, on a cause of action against the decedent,
all damages are recoverable that might have been recovered
against the decedent had the decedent lived except damages
recoverable under Section 3294 of the Civil Code or other
punitive or exemplary damages.”8 Code of Civil Procedure
section 377.42 is generally understood to extinguish all punitive
or exemplary damages claims against an individual upon that
individual’s death. (See Whelan v. Rallo (1997) 52 Cal.App.4th
989, 992 [“case law has consistently held the right to punitive
damages is extinguished . . . if the defendant dies before
judgment is entered”]; Bancroft-Whitney Co. v. Glen (1966) 64
Cal.2d 327, 357 (1966) [“The cause of action for punitive damages
8 “Decedent’s successor in interest” is defined as “the
beneficiary of the decedent’s estate or other successor in interest
who succeeds to a cause of action or to a particular item of the
property that is the subject of a cause of action.” (Code Civ. Proc.,
§ 377.11.) Given our conclusion that the plain language of
Probate Code section 552 mandates that a claim against the
estate under section 550 be treated identically to a claim brought
against the personal representative, we need not address
Respondent’s argument that MCIC is Niparko’s “successor in
interest.”
37
does not survive [decedent’s] death,” citing Prob. Code, § 573,
predecessor to Code Civ. Proc, § 377.42].) The longstanding
rationale for this rule is that “since the purpose of punitive
damages is to punish the wrongdoer for his acts, accompanied by
evil motive, and to deter him from the commission of like wrongs
in the future, the reason for such damages ceases to exist with
his death,” and “punitive damages by way of example to others
should be imposed only on actual wrongdoers.” (Evans v. Gibson
(1934) 220 Cal. 476, 490; accord, Roddenberry v. Roddenberry
(1996) 44 Cal.App.4th 634, 666; cf. Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 982 [holding in legal malpractice case “[i]t is
inconsistent with the goal of punishment to transfer the
punishment to an actor innocent of the conduct necessary to
justify an award of punitive damages”], citing Evans, 220 Cal. at
pp. 489-490.)
If a decedent was insured, “an action to establish the
decedent’s liability for which the decedent was protected by
insurance may be commenced or continued against the decedent’s
estate without the need to join as a party the decedent’s personal
representative or successor in interest” (Prob. Code, § 550), with
the estate named as defendant but only the insurer served in the
action (id., § 552, subd. (a)).9 Thereafter, “[t]he proceedings are
9 Probate Code section 550 provides: “(a) Subject to the
provisions of this chapter, an action to establish the decedent’s
liability for which the decedent was protected by insurance may
be commenced or continued against the decedent’s estate without
the need to join as a party the decedent’s personal representative
or successor in interest. [¶] (b) The remedy provided in this
chapter is cumulative and may be pursued concurrently with
other remedies.”
38
conducted as if the action were against the personal
representative of the estate[.]” (Meleski v. Estate of Albert Hotlen
(2018) 29 Cal.App.5th 616, 624 (Meleski); see Prob. Code, § 552,
subd. (a).) However, unless the personal representative is joined
as a party and the plaintiff files a creditor claim against the
estate, a judgment in an action under Probate Code section 550
“does not adjudicate rights by or against the estate”—damages
are “enforceable only from the insurance coverage and not
against property in the estate.” (Prob. Code, §§ 553-554; see
Meleski, 29 Cal.App.5th at p. 624; Estate of Prindle (2009) 173
Cal.App.4th 119, 129 (Prindle).)10 A plaintiff may concurrently
Probate Code section 552 provides: “(a) An action under
this chapter shall name as the defendant, ‘Estate of (name of
decedent), Deceased.’ Summons shall be served on a person
designated in writing by the insurer or, if none, on the insurer.
Further proceedings shall be in the name of the estate, but
otherwise shall be conducted in the same manner as if the action
were against the personal representative. [¶] (b) On motion of an
interested person, or on its own motion, the court in which the
action is pending may, for good cause, order the appointment and
substitution of a personal representative as the defendant. [¶] (c)
An action against the estate of the decedent under this chapter
may be consolidated with an action against the personal
representative.”
10 Probate Code section 553 provides: “The insurer may deny
or otherwise contest its liability in an action under this chapter
or by an independent action. Unless the personal representative
is joined as a party, a judgment in the action under this chapter
or in the independent action does not adjudicate rights by or
against the estate.”
39
pursue an action against the personal representative, which
allows damages above the policy limits to be enforced against the
estate. (Prob. Code, §§ 550, subd. (b); 553, subd. (b).)
Section 550 et seq. of the Probate Code provides a
streamlined way to name the decedent’s estate as the defendant
to recover insurance proceeds without the need to join the
decedent’s personal representative as a party. Proceeding
against an insured estate under section 550 “merely simplifies—
and in many cases accelerates—recovery against a deceased
tortfeasor: Probate is avoided, the decedent’s liability is litigated
without placing his or her estate at risk, and recovery is limited
to the decedent’s available insurance proceeds.” (Smith v.
Interinsurance Exchange (1985) 167 Cal.App.3d 301, 303-304.)
The crux of Silvester’s argument is that because an insured
estate may proceed as a nominal defendant in an action against
the estate independently of the personal representative of the
estate, liability for punitive damages should operate differently
against the insurer than against the personal representative.
Silvester attempts to fashion a legal distinction and alternate
path to liability where none exists.
Probate Code section 554 provides: “(a) Except as provided
in subdivision (b), either the damages sought in an action under
this chapter shall be within the limits and coverage of the
insurance, or recovery of damages outside the limits or coverage
of the insurance shall be waived. A judgment in favor of the
plaintiff in the action is enforceable only from the insurance
coverage and not against property in the estate. [¶] (b) Where the
amount of damages sought in the action exceeds the coverage of
the insurance, subdivision (a) does not apply if both of the
following conditions are satisfied: (1) The personal representative
is joined as a party to the action. (2) The plaintiff files a claim in
compliance with Section 9390.”
40
Silvester does not dispute that Code of Civil Procedure
section 377.42 expressly prohibits punitive or exemplary damages
in an action against the decedent’s personal representative.
Rather, he contends, “Substantively, this case has two
defendants: (1) the Estate, and (2) the [personal representative],”
and suggests that because there is no express statutory bar in the
Probate Code to recovery for punitive or exemplary damages from
an estate’s insurance he should be able to pursue punitive and
exemplary damages to the extent of the estate’s insurance.11
Silvester is incorrect. First, in an action under Probate
Code section 550, “[i]t is a legal fiction that the estate is the
party”—the estate itself “is not a legal entity” but “‘merely a
name to indicate the sum total of the assets and liabilities of a
decedent.’” (Meleski, supra, 29 Cal.App.5th at p. 624.) Where, as
here, a personal representative has been appointed and an action
filed “against both that representative and the ‘estate’ of the
decedent, the two defendants are really one and the same.”
Neuland v. Russell (1975) 50 Cal.App.3d 1, 6 (Neuland)
[construing former Probate Code section 721].) An action against
the estate of the decedent under Probate Code section 550 may be
consolidated with an action against the personal representative
(Prob. Code, § 552, subd. (b)) specifically because the liability
issues are identical. (See com. to Prob. Code, § 552
[“Consolidation may be appropriate since the issues relating to
liability are the same.”], italics added.) Thus, there is no
11 Although “California law prohibits indemnification of
punitive damages by insurers” (Piscitelli v. Friedenberg, supra,
87 Cal.App.4th at p. 982; see Ins. Code, § 533), Silvester asserts
Maryland law applies to the question of insurability and would
permit insurance coverage of punitive damages. We need not and
do not address this issue in reaching our conclusion here.
41
substantive distinction between the nominal defendants for
purposes of liability. Including an action against the personal
representative merely provides the possibility of recovery from
the estate for damages over insurance policy limits. (Prob. Code,
§ 553, subd. (b).)
Second, we find dispositive the plain language of Probate
Code section 552, subdivision (a), which instructs that actions
against an insured decedent under section 550 “shall be in the
name of the estate, but otherwise shall be conducted in the same
manner as if the action were against the personal representative.”
(Italics added, see Meleski, supra, 29 Cal.App.5th at p. 624
[same]; Prindle, supra, (2009) 173 Cal.App.4th 119, 129 [same,
noting former Probate Code section 721 had same effect as
current section 550 et seq.]; Neuland, supra, 50 Cal.App.3d at
p. 6 [same, under former Probate Code section 721].)
The commonsense interpretation of the statutory directive
to conduct proceedings “in the same manner as if the action were
against the personal representative” is that an action against the
estate under Probate Code section 550 must be treated
identically to an action against the personal representative—
including for purposes of liability for punitive damages. Here,
Code of Civil Procedure section 377.42 specifies that no punitive
or exemplary damages are available in an action against the
personal representative: “In an action or proceeding against a
decedent’s personal representative . . . , all damages are
recoverable that might have been recovered against the decedent
had the decedent lived except damages recoverable under Section
3294 of the Civil Code or other punitive or exemplary damages.”
Treating an action against the estate under Probate Code section
550 “in the same manner” as an action against the personal
42
representative means the punitive damages limitation in Code of
Civil Procedure section 377.42 must apply to both. (Cf.
Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 860 [where
one statute stated a statement of damages “shall be served in the
same manner as a summons” and another provided for service of
a summons by mail, it follows that a statement of damages could
be served by mail].) Silvester’s assertion that recovery of
punitive or exemplary damages is permitted against insurance
covering a decedent’s estate but not against a decedent’s personal
representative is directly contradicted by the plain language and
unambiguous requirement of Probate Code section 552,
subdivision (a), that actions under section 500 “shall be
conducted in the same manner as if the action were against the
personal representative.”
We also reject Silvester’s contention that the trial court in
its order granting summary adjudication erred by referring to
MCIC at all given Respondent’s notice of motion for summary
judgment, which posed as the sole issue that Silvester “cannot
assert a claim for punitive damages against the personal
representative in this action.” “A motion for summary
adjudication tenders only those issues or causes of action
specified in the notice of motion, and may only be granted as to
the matters thus specified.” (Schmidlin v. City of Palo Alto
(2007) 157 Cal.App.4th 728, 743-744.) However, the notice does
not have to “precisely identif[y]” “the ‘matters’ at issue”⎯even
just “a listing of the disputed causes of action . . . is sufficient.”
(Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472,
1478.) Here, particularly because the personal representative
and estate defendants are substantively indistinguishable for
liability purposes, it is sufficient that the personal
43
representative’s notice of motion raised the issue of punitive
damages. Her memorandum also argued that “MCIC is not a
tortfeasor or wrongdoer in this case,” and Silvester “cannot
recover damages against MCIC that do not survive Dr. Niparko’s
death.” The issue was thus squarely before the trial court, which
correctly concluded that “the Representative has standing to
dispute punitive damages generally as any punitive damage
award would necessarily be against the Estate, whether or not
MCIC pays such damages.”
DISPOSITION
The judgment is reversed. The matter is remanded for a
new trial. Appellant is to recover costs on appeal.
WISE, J.
We concur:
SEGAL, Acting P. J. FEUER, J.
 Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
44