Any Question, Part III.

Here are excerpts from my appellate reply brief. One can see from "Any Question, Part II" (see December 16, 2010 post below), the court of appeal drew from the reasonable intepretation theme and relied on the two major cases which I cited: Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162, and McIndoe v. Olivos (2005) 132 Cal.App.4th 483. Both opinions were handed down by the same appellate court which decided my client's appeal here.

"I. INTRODUCTION

'Interpretation must be reasonable.' (Cal. Civ. Code §3542.)

The Respondent’s Brief ... represents an extended exercise in unreasonable interpretations. It unreasonably interprets (a) the subject trust instrument; (b) the proposed Petition; and (c) California decisional authority, including this District’s own opinions.

First, Respondent’s proffered view that the no contest clause applies only to the original trust (RB, p. 3) as constituted at the time of its creation would render the no contest clause as superfluous and defeat its purpose. That purpose, of course, is to discourage the beneficiaries from challenging the trustors’ plan for administration and distribution of the trust assets in accordance with provisions set forth in the trust instrument. It would be unnecessary to apply the no contest clause only to the original trust when the trustors and trustees are both still alive. They obviously would not be applying it to themselves. Their inclusion of the no contest clause only makes sense when it is applied to the subtrusts, which take effect only after a death of a trustor/trustee, as here. (AA00077-79; AA000161-163.)

Second, Respondent’s Brief misinterprets the Petition, erroneously claiming that it only seeks to remove trustees for cause. (RB, p. 5.) To the contrary, the Petition seeks to invalidate one of the trustors’ most important decisions and provisions—an article designating who will serve as successor trustee—even before the successor trustee has ever so served. (AA000114-16.)

Third, Respondent’s Brief misinterprets several cases undermining its assertions, including those of this Court, to a similarly tortured result.

Because the Respondent’s Brief’s interpretive errors infect its analysis, it leads to the wrong result. Moreover, it does nothing to controvert the arguments of the Opening Brief, namely:

· The no contest clause of the trust explicitly applies to “any of the provisions” of the trust instrument, which necessarily includes the subtrusts established by the very same trust instrument;

· The trust clause designating the appointment of a successor trustee applies to the subtrusts; and

· The Petition constitutes a contest, because, among other things, it preemptively seeks to invalidate the successor trustee provision (Article 7.02 [AA00036, AA 000174]), which has not yet taken effect.

Accordingly, Appellant ... respectfully requests that this Court reasonably interpret the trust to uphold the trustor’s intent (the Appellant here) and binding California law, and rule that [Respondent's] Petition, seeking, among other things, to invalidate the successor trustee provision, violates the trust and subtrusts’ no contest clause."

* * *

"C. Respondent [ ] Misinterprets the Governing Authority

Try as he might, [Respondent] cannot get around this Court’s holding in Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162 [11 Cal.Rptr.2d 448]. The Scharlin Court was asked to determine if a no contest clause in an Amendment was able to modify an existing no contest clause in the general provisions of a trust as it related to an Irrevocable Decedent’s Trust (referred to as Trust B in the opinion). This Court held that because the Decedent’s Trust was irrevocable when the Amendment was executed, the Amendment’s no contest clause had no effect on the Decedent’s Trust [Trust B]. (Id. at 170-71 [11 Cal.Rptr.2d at 448].) In Scharlin, this Court evaluated the no contest clause of that trust which had strikingly similar language to the No Contest Clause in question in these proceedings. This Court held that “As to Trust B, the clause in the original trust agreement controls.” (Id. at 171 [11 Cal.Rptr.2d at 448]; emphasis supplied.)

"[Respondent's] continuing effort to point to a purported absence of language expressly incorporating the general provisions of the Trust into the subtrusts created within the Trust is unsupported by any authority. To the contrary, as was the holding in Scharlin, it is clearly implied by the provisions of the Trust that the subtrusts are to be administered pursuant to the terms of the Trust in which they were created. To say that the election option of Article 4.02 (AA000023-25) is conditional language and only in the event that the surviving Trustor opts to take the election as described in Article 4.02 will the subtrusts be subject to the provisions of the underlying Trust defies logic.

* * *

This Court in Scharlin notes [ ] citing California First Bank v. Townsend (1981) 124 Cal.App.3d 922, 930 [177 Cal.Rptr. 723]: “In construing a trust instrument, the intent of the Trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it.” (Scharlin, 9 Cal.App.4th at 168 [11 Cal.Rptr.2d 448].) By dissecting the Trust instrument to give it his own meaning, [Respondent] is ignoring the intent of the Trustors, of which Appellant is one. (AA000018.) Respondent has always intended the general provisions of the Trust to control the subtrusts and is certain that Lloyd felt the same way. (AA000143.) [Respondent] cannot trump this [intent] by simply repeating his mantra that “no contest clauses” are to be strictly construed. (See, e.g., RB p. 7.) Even with strict construction, as noted in the Opening Brief, the no contest clause was intended to be, and was in fact, made applicable to the subtrusts. (OB, p. 12; AA000035.)

Finally, [Respondent's] breathless attempts to evade Scharlin fail especially when one considers another Fourth District case, McIndoe v. Olivos (2005) 132 Cal.App.4th 483 [33 Cal.Rptr. 689].

In McIndoe, the appellate court stated: “The no contest clause was located in the ‘general provisions’ section of the trust document, which specified that all general provisions “apply to each trust established hereunder[.]” Thus, the trust document specified that the no contest clause applied to the entire trust estate, including the exempt trust and the survivor's trust. Significantly, the amendments to the survivor's trust ratified all terms and conditions of the original trust or left the original trust unchanged. Because the no contest clause of the original trust applied to all subtrusts, there was no need to add a no contest clause to the exempt trust.” (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. 689, 692].)

Likewise, here, the no contest clause was contained in the general provisions section of the original trust. The original trust similarly stated that no contest clause of the Trust applies to “any provisions of the instrument” [emphasis added], which necessarily includes the subtrusts created by the same instrument. (AA000035.) Thus, as the McIndoe court observed, there was no need to add a no contest clauses in each of the subtrusts (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. at 692]), as [Respondent] contrarily urges here."

Any Question?, Part II.

As predicted in Part I, the court of appeal issued its published decision in my client's [the appellant] favor. The appellate opinion reversed the trial court by a 3-0 vote.

The case involved two primary questions: (1) whether there was a "no contest" clause incorporated into subtrusts; and if so, (2) whether a proposed petition constituted a "contest". The court of appeal ruled in our favor on both questions. Here are the "greatest hits":

"In granting [Respondent's] safe harbor application, the trial court found neither of the two [sub]trusts [B and C] contains a “no contest” clause and, moreover, even if the clause did apply, the proposed petition does not constitute a “contest” as defined in the Probate Code. Because the trial court erred in granting the application for safe harbor, we reverse.

***

"[Appellant] argues the trial court erred in granting [Respondent] safe harbor to file the proposed petition. She asserts the trial court erred in finding that the Trust’s “no contest” clause did not apply to the subtrusts and the proposed petition did not constitute a “contest” under the terms of that clause. [Appellant's] claims have merit.

1. Whether There Was a No Contest Clause Applicable to the Subtrusts?

"[Respondent's] argument for interpreting the “no contest” clause as inapplicable to Trusts B and C is beguilingly simple. He contends that because the Trust does not explicitly state the “no contest” clause applies to the subtrusts, it must be strictly construed as applying only to the original trust. But such a construction not only ignores the trustors’ intent as revealed in “the whole of the trust,” it is also patently unreasonable.

"The trustors’ intent that the “no contest” clause applies to the subtrusts is implicit in the terms of the Trust. This document, a revocable instrument, created and funded the three subtrusts upon the first trustor’s death. (Trust, ¶ 4.02(b).) At operation, Trusts B and C were irrevocable, and a host of provisions in the original trust immediately came into play, establishing rules for the administration of the subtrusts. For example, paragraph 4.02(b) directed that each of the subtrusts “shall constitute and be held, administered and distributed by the Trustee as a separate Trust.” Paragraphs 4.04 and 4.05 established distribution rules for the assets and principal of Trusts B and C. Most importantly, for our purposes, paragraph 6.05 prohibited any beneficiary entitled to “any distributions . . . or any benefits under this trust instrument” from “contest[ing] in any court any of the provisions of this instrument[.]” Taken together, these provisions reveal the trustors’ intent that the Trust should govern the trustee’s administration of the subtrusts upon their creation and funding.

"This conclusion the “no contest” clause applies to the subtrusts is the only reasonable construction of the clause. Because the original trust was revocable, a “contest” was never a possibility during the joint life of the trustors. Only upon [one of the trustor's] death, when the remainder beneficiaries gained their irrevocable interests in Trusts B and C, did the possibility of a “contest” pose a risk to the trustors’ plan for the assets they placed in trust. Ascertaining the intent of the trustors, as we must, from “the whole of the trust instrument,” we conclude the “no contest” clause applies to Trust B and C.

"McIndoe v. Olivos (2005) 132 Cal.App.4th 483 (McIndoe) bolsters our conclusion. In McIndoe, the husband and wife trustors of a revocable family trust created and funded two separate trusts, a “survivor’s trust” and an “exempt trust,” upon the death of the first spouse, a plan that differs from the [one here] only in the number of subtrusts created, two rather than three. The McIndoe family trust, also like the [original here], included a no contest clause that did not specifically state that it applied to the subtrusts. After the death of the first spouse in McIndoe, the surviving spouse repeatedly exercised her right to amend the revocable “survivor’s trust,” which held her separate property and share of the trustors’ community property. These amendments favored one sibling beneficiary over the other, and when the surviving trustor died, the disadvantaged beneficiary challenged the amendments on the ground of undue influence. The disadvantaged beneficiary sought a safe harbor determination that her proposed contest to the heavily amended survivor’s trust would not constitute a contest to the exempt trust. The court agreed, based on the terms of the original trust.

"Importantly for our purposes, the court in McIndoe affirmed that “the no contest clause in the original trust applies to challenges to the original trust, the exempt trust and the survivor’s trust,” even though the no contest clause there did not specifically state it applied to the subtrusts. (McIndoe, supra, 132 Cal.app.4th at p. 487.) The court stated, “The no contest clause was located in the ‘general provisions’ section of the trust document, which specified that all general provisions ‘apply to each trust established hereunder[.]’ . . . Because the no contest clause of the original trust applied to all subtrusts, there was no need to add a no contest clause to the exempt trust.” (Id. at p. 488.)

"Like the “no contest” clause in McIndoe, the “no contest” clause in the present case was also located in a “general provisions” section of the Trust –– Article 6, entitled “MISCELLANEOUS PROVISIONS.” (Trust, ¶¶ 6.01-6.06.) Though Article 6 did not specify that its provisions applied to each subtrust, that intent was implied in the provisions themselves, and from the instrument as a whole, as explained above. Consequently, McIndoe supports our finding that the “no contest” clause applied to Trusts B and C. (See also Scharlin, supra, 9 Cal.App.4th 162, 170-171 [where original trust created two subtrusts, revocable survivor’s trust, and irrevocable decedent’s trust, “no contest” clause in original trust controls decedent’s trust].)"

2. Whether the Proposed Petition Constituted a "Contest"?

"[Respondent] argues his proposed petition is not a “contest” because it “does not challenge, either directly or indirectly, the validity of the Original Trust[.]” He asserts his petition “does not seek to invalidate any provision of the Original Trust . . . and, instead, seeks to ensure that the testator’s intent as expressed in the Original Trust . . . is properly carried out.” Thus, [Respondent] contends that if he obtains all the relief requested in his petition, “the separate trusts will remain unaltered, and the various trust beneficiaries will receive only what they are due under the Original Trust . . . .” His argument does not ring true.

"The proposed petition directly contravenes an express directive in the Trust: that his brother [ ] serve as successor trustee in the event of [Appellant's] “death, inability or unwillingness . . . to act as Trustee[.]” (Trust, ¶ 7.02.) This provision clearly expresses the trustors’ intent regarding who will serve as their successor trustee, yet [Respondent] tries to thwart this intent with a two-fold attack.

First, [Respondent] asserts the Trust does not “provide for a Trustee to Trusts B/C or a successor,” and that paragraph 7.02 applies only to the original trust, not to the subtrusts. (Italics omitted.) He argues paragraph 7.02 “governs only the [ ] Family Trust [A] and that none of the terms of that Trust were referred to or incorporated into Trusts B/C which were Expressly created to be held separate and a part [sic] from the [ ] Family Trust.” (Italics omitted.) In other words, [Respondent] asserts the Trust designates neither a trustee nor a successor trustee to administer the subtrusts. But this argument flatly contradicts much of Article 4 of the Trust, which details how the trustee is to hold and administer the three subtrusts. (See, e.g., ¶ 4.02 (b) [upon first trustor’s death, trustee shall divide Trust estate into three subtrusts, each of which “shall . . . be held, administered and distributed by the Trustee”].)
"[Respondent's] second attack on the successor trustee provision directly contradicts the trustors’ intent. [Respondent] argues that if paragraph 7.02 does apply to the subtrusts, and [Brother] is found to be the successor trustee, then the court should find [Brother] “unfit” to serve because he lacks the necessary education and skill to perform his duties. [Respondent] also alleges [Brother] lacks “the requisite good faith and impartiality,” as evidenced by his “openly and outrageously hostile [attitude] toward [Respondent].”

"For many, the decision of who will serve as trustee or successor trustee is a significant one. Here, [the trustors] made clear their intention that their son, [Brother], would follow one of them as successor trustee. [Respondent's] assertion the court should ignore this intent and override paragraph 7.02 because he considers [Brother] prospectively unfit is indisputably a contest of one of the provisions of the Trust. It follows that the trial court erred in granting [Respondent] safe harbor to file his proposed petition."

In Part III, I will include excerpts from my brief for the reader to see how the court of appeal closely hewed to my arguments centering on my theme that one must reasonably interpret the trust instrument, the petition and governing authority.

Any Question?, Part I.

I argued in an appellate court last week.

My client was the appellant, so I went first. At the conclusion of my sub-five minute presentation, I inquired if the panel had any question.

None. At this point, I was unsure what this meant. Based on past experience, that silence could equate to a 3-0 win or a 3-0 loss.

However, seconds into my opponent's presentation the picture became clear. He managed to get a sentence out and then the barrage began.

These weren't really questions, but declarative sentences emanating from the bench.

Sometimes an appellate court's questions can be subject to interpretation, such as the question, "How would you reconcile these two cases?", could turn either way. These weren't like those. For example, my opponent fielded a query to the effect of "That interpretation is 'illogical' isn't it?"

Nice choice of words since I used that word advisedly in my brief and presentation about the opposition's interpretation. Another justice weighed in similarly: "That doesn't make any sense? Why would anyone do that?" Opponent's response: "I don't know."

When it came back to me for any rebuttal, the well-worn saw about snatching defeat from the jaws of victory came to mind. Since it appeared my work here was done, I decided to save my witty repartee for another time, and simply remarked, "I'm confident the Court has a firm grasp of the issues", and submitted the matter for decision.

Summiting, Part III.

At oral argument, my certified-appellate-specialist counterpart responded to a justice's question by evidently abandoning his first of two primary arguments.

Seizing on this curious concession, I pinned him on this point and then advanced to his second contention.

The next day, I received a copy of a letter he sent to the justices. In the missive, he attempted to retract his concession imploring the court to consider his first claimed error. To gain the court's benevolence, he asserted that he wasn't prepared for the question and his remark was ill-considered and hasty.

Incredibly, about 14 days later, I received a second letter he later sent to the justices. In the second correspondence, he attempted to “clarify” his first letter, again saying that he wanted the court to rule in his client's favor on his first argument.

Three bites at the proverbial apple. That was a first.

Summiting, Part II.

In Summiting (Part I), I provided excerpts from my Respondent's brief:
http://lawreligionculturereview.blogspot.com/2009/01/summiting.html

In this brief, I adopted an alpine climbing theme and started with a Nelson Mandela quote: “After climbing a great hill, one only finds that there are many more hills to climb.”

To switch things up at oral argument (since it's a good idea not to repeat one's brief), I quoted Randy Pausch, the late Carnegie-Mellon professor, who alighted the world with his "Last Lecture" viral video and book.

As Dr. Pausch said, "If there is an elephant in the room, introduce it." I then posited that the trial court's statement of decision, spanning 28 pages--replete with evidentiary citations and credibility determinations--was the proverbial "elephant in the room" in this case. Appellant could not get around the myriad exhibits and testimony relied upon in the document, as much as he wished to ignore it.

In its opinion today (affirming in favor of my client 3-0), the appellate court adopted my arguments that (1) Appellant had waived his insufficiency of the evidence argument by not citing all of the evidence favoring the decision (or even acknowledging its existence in the statement of decision); and (2) even if Appellant hadn't waived the argument, the evidence cited in the statement of decision more than amply supported the judgment.

At oral argument, Appellant's counsel (a certified appellate specialist) in part tried to undermine the trial court's determination by claiming that the trial court got a fact wrong. When it was my turn, I corrected this allegation by noting that the trial court nowhere made such a finding or relied on said "fact", but rather based its ruling for that issue on seven (7) other evidences, which I cited from the statement of decision--the "elephant in the room". You could have heard a pin drop when that evisceration was complete. Not surprisingly, these seven evidences were quoted in the opinion--with enumeration.

"That's You", Part II.

From my Respondent's Brief, an excerpt of the introduction:

“Appellants’ Opening Brief (“OB”) comes with much sound and fury, but in the end signifies nothing.

"Inflammatory, inapt words like “evil” (OB, p. 9) and “immoral crime” (OB, p. 13) are bandied about with abandon (even including accusations that the trial court was “morally wrong” [OB, p. 18]), but they do not obfuscate the appeal’s overall lack of merit, persistent neglect of the facts and findings against them, and numerous fatal procedural defects.

***

"As has been said about this case, it is like arranging a car accident and calling it a personal injury case. (RT, p. 22:4-5.)

"In doing so, Appellants have failed to surmount mandatory procedural hurdles, which should result in the appeal being dismissed (at least in large part) without even having to reach its purported merits.

"First, while explicitly bringing a challenge to adequacy of damages (OB, pp. 2-3), Appellants failed to first bring a motion for new trial as required (as discussed more fully below). (E.g., Jenkins v. Dahnert (1962) 202 Cal.App.2d 567, 568 [21 Cal.Rptr. 15].)

"Second, while mounting a sufficiency of the evidence challenge (in large part), Appellants failed to cite a plethora of material evidence that supports the judgment (and is against their proffered conclusions). In such a case, “All the material evidence on the point and not merely their own evidence” must be presented to the appellate court. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416, 430]; emphasis in original.) “Unless this is done the error is deemed waived.” (Id.) Accordingly, where the sufficiency of evidence standard applies, Appellants’ claimed errors are waived.

"Third, Appellants improperly seek for the first time on appeal to hold the estate of [L] (who died before the complaint was filed) responsible despite they have failed to sue it in the trial court, or make any timely claim against it. ([Statement of Decision], pp. 6 and 12; and [Clerk's Transcript, p. 9, 10:7-9 and 45.) Principles of due process as well as California law regarding the separateness of trusts and estates preclude this prejudicial, untimely effort.

"[Appellants’] appeal fails to provide any basis for this Court to disturb the considered judgment on appeal. Accordingly, this Court should affirm in all respects.”

At oral argument, Appellants’ counsel picked up where his brief left off and spoke about the “disgusting” work his clients (in-home care providers) had provided, including dealing with incontinence, bathing and cleaning. Another of the justices interjected “I have to say counsel that when I found that kind of language in your brief I was very offended.”

When the justice made that comment, I wondered if he was saying he was offended by Appellants’ counsel’s attempt to emotionally sway the court with inflammatory (and irrelevant) language—a point I made in my brief (see excerpt above).

It didn’t turn out that way.

The justice then explained why he was offended. He said that his mother had been an in-home care provider and therefore found the description of the work as “disgusting” to be “very offensive”. He lectured the other attorney that the work they do is "honorable". This connection didn’t exactly cut my way either for obvious reasons.

Nevertheless, that justice as well as the other two voted to affirm in favor of my clients.

"That's You", Part I.

Despite the rain, I appeared early for oral argument in the Court of Appeal that sits in downtown Los Angeles.

My opponent didn't.

When the case was called, the clerk had to tell the Court that the appellants' attorney (the other side) wasn't there yet. So the Court called another case instead.

During that argument, I saw that my counterpart had arrived. We acknowledged each other with a wave.

Our case was called next. I approached Respondent's table. My counterpart stood up, but didn't move. He displayed a quizzical look on his face. Even though he saw me stand up and move to counsel's table, he evidently didn't realize that was his cue to advance as well. Finally, one of the justices said to him, "That's you." I knew this justice had been a Los Angeles Superior Court trial judge who had handled a very famous criminal case some years ago. My opponent's cases were mostly litigated in Los Angeles. I surmised they must have known each other.

In any event, since the other side had appealed, he went first. This same justice picked up with the first argument in my brief: that the appeal should fail because appellants had not filed a motion for new trial in the trial court. He fired a question that went something like this, "Isn't the appeal barred because you didn't bring a motion for new trial?" The answer boiled down to appellants' view that such a motion would be "surplusage" because they brought a flurry of post trial challenges to the trial court's ruling. The same justice then challenged that answer by saying something to the effect of, "Isn't the trial court better positioned to make this determination because it involves weighing credibility?" Appellants' counsel dismissed that inquiry by saying there was no credibility to weigh--it was a simply a matter of applying the law to certain facts.

At my turn, I looked at the appellate justice who asked the first question and remarked that the Court's question was particularly apropos because the trial judge specifically stated that he did not find appellants' story to be "believable" in a crucial respect--the very essence of a credibility determination that cannot be disturbed on appeal. I quoted this part of the statement of decision and also where this quotation appeared in my respondent's brief. I also responded to statements in appellants' reply brief (which could not be responded to earlier). The justices had no questions for me. While my estimated time was five minutes, I concluded with time to spare (taking to heart Justice Scalia's brevity admonition in 2008's Making Your Argument: How to Persuade Judges [reviewed here on December 23, 2008].)

The appellate opinion came out this week. My clients won with a 3-0 decision, affirming the trial court's decision in full. In part two, I will include an excerpt of my Respondent's brief with a comment that another justice made to my counterpart at oral argument.

Summiting.

Although I’ve never done any alpine climbing, I have a healthy respect for, and knowledge about, it. I’ve read numerous books on climbing, including Jon Krakauer’s Eiger Dreams and Into Thin Air. I’ve also enjoyed many movies involving the topic, including Eiger Sanction and K2. So, I surmise it was inevitable that this interest would seep into my brief writing. Here’s the introduction from an appellate brief I filed late last year drawing on the theme (see, in particular, bolding):


"'After climbing a great hill, one only finds that there are
many more hills to climb.'

--Nelson Mandela

The appeal of Appellant [ ] presents a similarly arduous task. It must surmount multiple peaks in order to ultimately prevail.

In the first consolidated appeal [omitted case numbers], this Court reversed solely to have the trial court issue a statement of decision and judgment thereon. (2008 Appellant’s Appendix [“AA”], p. 3.) [footnote omitted.] This Court reversed even though Appellant’s request, “Can we ask for a Statement of Decision?” (RT 317:20) was “ambiguous”, “defective” and failed to “specify those controverted issues as to which the party is requesting a statement of decision.” (2008 AA, pp. 5-6.)

As to the underlying Judgment (apart from the much later post-judgment ex parte orders), this Court merely indicated that “the evidence [ ] be sifted and weighed in a statement of decision.” (2008 AA, p. 10.)

Thereafter, the trial court issued an evidentially detailed 28-page statement of decision addressing the principal controverted issues of the underlying trial: (a) whether the burden shifted to Appellant to prove that the Amendments and Restatements, dated March 8, 2002, to the [ ] Living Trust, dated August 3, 1999, were not the product of undue influence; (b) whether Appellant met this burden; and (c) whether the trust amendments were obtained by [Appellant’s] undue influence. (2008 AA, pp. 43-45, 49-70.) The trial court amply supported its statement of decision with myriad citations to evidence including trial exhibits and witness testimony, and made key determinations concerning witness credibility, demonstrating a careful sifting and weighing of the evidence. Among other things, the trial court crucially found [Appellant] not credible in light of [his] “continually” “conflicting testimony”. (2008 AA, p. 62; see also p. 61.) Appellant explicitly asks this Court to override and substitute its own credibility determinations for those of the trial court regarding at least two pivotal witnesses, [Appellant] and the drafting attorney, [K]. (OB, pp. 44-45, 49.)

Despite possessing the statement of decision this Court ordered, Appellant is still dissatisfied. Appellant demands another reversal claiming the lengthy statement of decision did “none” of the things it was supposed to do. (OB, p. 21.)

Additionally, Appellant asserts that the Judgment was not supported by “substantial evidence.” Because Appellant has mounted an insufficiency of the evidence challenge, he bears an especially “daunting burden” (Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-29 [249 Cal.Rptr. 798].) This burden is made even more daunting because Appellant must show that the presumption of undue influence never shifted to Appellant (contrary to the trial court’s determination), that Appellant somehow met this burden by showing the trust amendments were not obtained by [Appelant’s] undue influence, and even if the burden was not shifted, Appellant must overcome the trial court’s findings of “clear and convincing” evidence that [Appellant] exerted undue influence in obtaining the trust amendments at issue.

In attempting to summit these Himalayan heights, Appellant misapplies the applicable law (even that explicated by this Court in its ruling [2008 AA, p. 9]), ignores reams of evidence (despite his burden to present it in his Opening Brief), and disregards factual findings on which the trial court relied in finding for Respondent [ ].

Appellant has failed to meet his towering burden. This Court should affirm."