Abasolo v. Menasco CA1/4 filed 7/17/26

Filed 7/17/26 Abasolo v. Menasco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JOSEPH ABASOLO, as Trustee, etc.,
Plaintiff and Respondent,
v.
JAMES KENNETH MENASCO,
Defendant and Appellant.

A173231

(Alameda County
Super. Ct. No. RP22119647)

Following a multi-day bench trial, the court voided a joint tenancy deed between appellant James Kenneth Menasco—a licensed real estate agent—and his longtime friend and client, Julian Abasolo (decedent herein), finding, among other things, that Menasco had acted in bad faith when he unduly influenced decedent to remove property from decedent’s trust and convey it into a joint tenancy with Menasco on the promise that Menasco would perform according to a related purchase agreement. The court awarded double damages under Probate Code section 859, calculated from the reasonable value of the property offset by improvements made by Menasco for a total of $1,758,136.06; attorney fees were also awarded subject to proof. On appeal, Menasco asserts the court improperly applied the presumption of undue influence pursuant to section 21380. He further claims the damages award was speculative and excessive. We affirm.
I.
BACKGROUND
Pursuant to section 850, Joseph Abasolo, as successor trustee of The Julian Abasolo Living Trust, dated July 13, 2017 (trust), sought recovery of property and damages from Menasco. The operative petition alleged Menasco acted in bad faith by wrongly taking property belonging to the trust and decedent’s estate. The petition further alleged Menasco unduly influenced decedent to enter into a purchase agreement for 2520 Clement Avenue, Alameda, California (the property) and unduly influenced decedent to execute a joint tenancy deed for the property, thereby amending decedent’s estate plan. Decedent died approximately three months after executing the joint tenancy deed.Upon decedent’s death, Menasco claimed, “this is my house.”
II.
EVIDENCE AT TRIAL
A. Living Trust and Transfer Deed
On July 13, 2017, decedent executed the trust.Joseph and his wife were the named beneficiaries. Along with settling the trust, decedent executed a trust transfer deed, which conveyed his primary residence (referenced as the property herein) in favor of the trust.In conjunction with the trust, decedent executed a pour-over will, gifting the remainder of his estate to the trust.
B. Decedent’s Trusting Nature, Illiteracy, and Medical Issues
It was widely known that decedent could not read, had limited comprehension, and suffered from debilitating medical issues that required him to rely on others for basic needs. Five witnesses testified about decedent’s intellectual, mental, and physical problems.
Decedent’s younger brother, Joseph, petitioner herein, testified although he was seven years younger than decedent, their mother’s last words to Joseph were, “ ‘Take care of your brother . . . .” Joseph explained his brother “was dependent, on everything . . .[H]e didn’t clean his clothes. He didn’t . . . feed himself. [¶] He had the homeless there in his house to feed him.” “They would bring him food, they’d always pick up something off the street and bring it to his house and leave it.” Decedent provided housing for unhoused people in exchange for their help; he was disabled from a back injury he sustained when he was 18. Decedent was “morbidly obese” weighing “over 300 pounds” and an “[i]nsulin-dependent diabetic.” He had three strokes during the last three to four years of his life. In 2018, he was in a coma for a week at the hospital.
Joseph testified that decedent “couldn’t read very well” and “didn’t understand basicrules.” In terms of decedent’s difficulties with reading, Joseph explained, “He just gave up . . . He didn’t try to read. He didn’t wear his glasses when he got older . . .[¶] [H]e depended on other people to read and understand – interpret . . . – what was written.” Decedent “could read simple words, cat, hat, and stuff like that . . . [¶] . . . He just trusted other people to read his information for him.”
Joseph explained that over the years decedent’s property had fallen into disrepair. Neighbors complained about the property, including the sight and smell of the trash build-up, as well as a rat problem. Eventually, the city began citing decedent for various code violations and “Red Tagging” his house.Joseph met Menasco in 2013, when the city issued the first Reg Tag notice. “Anytime the [c]ity came,” Menasco was there. At some point during the end of July 2021, decedent told Joseph that Menasco “purchased the house and was helping him abate. . . the Red Tag.”
Joseph testified that within a few hours of learning of decedent’s death, Menasco called him and said, “ ‘I’m responsible for the mortgage now’ and ‘This is my house.’” Later that day, Menasco went out to the property and “followed” Joseph around and “watched” him picking up decedent’s things.
Diane Marie Ferrari lived near decedent and had known him for over 10 years before his death. Early on in their friendship, decedent admitted he could not read; often, he would ask Ms. Ferrari to read and explain documents to him. She testified that decedent was a trusting person, who was a “bad judge of character,” which resulted in people taking “advantage of him.” Decedent was surrounded by “[d]erelicts,” who stayed at the property rent free; even after the derelicts twice stole his truck, decedent still allowed them to stay at his property. Ms. Ferrari knew decedent had severe diabetes and required insulin. However, it seemed like “he never really had enough money for insulin.” Shortly before he died, decedent’s “feet were really bothering him,” making it difficult for him to drive. Ms. Ferrari observed that “sometimes he would just be confused.”
Decedent had two strokes, one in 2021 shortly before he died. Ms. Ferrari testified that towards the end of his life, decedent “seemed a little more confused, but just as trusting as he always was throughout his whole life.” She explained if someone told him “something, no matter what it was, he would believe you. . .[¶] . . . [¶] . . . He was a kind, gentle, believing soul.”
Paula Rivera, a real estate agent and loan broker, was a family friend who had known decedent since he was two years old and she was four. While growing up, their families spent every summer together. Ms. Rivera said that decedent struggled with health issues when he got older. As far as she knew, decedent struggled with “blood-pressure,” “weight,” and “heart” issues. During the entire time she knew him, Ms. Rivera never saw him read anything. She explained that people “would read to him.” When Ms. Rivera was trying to procure a loan for decedent in 1990, he told her he could not read. She reassured him that she would explain everything to him in detail. In addition to having people read and explain things to him, decedent had people help him with his finances. Decedent’s cousin Irene paid his bills and managed his accounts. Ms. Rivera became aware that Irene had been taking advantage of decedent. Decedent told Ms. Rivera and her husband that Irene “had been taking money from him.”
During the last nine years of his life, Ms. Rivera witnessed decedent “declining physically.” She knew he had been hospitalized at least three times. Decedent also had a stroke within the last three years of his life.
Ms. Rivera’s husband, Dennis Rivera, also knew decedent from an early age. During “the ‘90s,” decedent admitted that he could not read. Mr. Rivera helped decedent with code violations on his property. About two or three years before he died, decedent asked Mr. Rivera for help regarding a “Red Tag” notice he received on the property. Mr. Rivera explained that decedent “had problems reading and comprehending and understanding,” such that he “would go over the paperwork with [decedent] step by step, telling him the process” for making needed repairs. Mr. Rivera further explained that decedent had “reading and comprehension” problems “most of his life, but it really got bad after he had the heart attacks.” As a result, Mr. Rivera “had to keep going over the same thing over and over, verbally telling him.” Following the heart attacks, decedent “was having emotional problems” and “saw a psychiatrist.”
Attorney Richard Meier knew decedent upwards of ten years prior to his death. Decedent, “to [his] knowledge,” was functionally illiterate.” Mr. Meier did not know if decedent could write, as he “never saw him sign anything,” but he did know decedent could not read. Occasionally, decedent sent him “documents to look at that he got in the mail, thinking they were important.” When decedent asked Mr. Meier to look over a proposed sale of his property to Menasco, he said he “didn’t want to touch that . . . document, with a 10-foot pole.” Mr. Meier told decedent, in the presence of Menasco, there was “no reason for a joint tenancy. None whatsoever.” He understood that Menasco would give him a new document to look over and approve; however, he did not receive any further documents. Instead, the deal was “done behind [his] back.”
Mr. Meier considered decedent a friend and he did not want him to enter this deal with Menasco. He did not review the grant deed before decedent signed it. Mr. Meier believed that decedent would not have understood what putting his property into “ ‘joint tenancy’ ” meant. He opined “the proposed transfer, was wrong, bad, improper, and possibly illegal when done by a Real Estate Broker with this long-time client.” Mr. Meier “was aghast that a Real Estate Broker would try and pull this one off on a client who he had to know was illiterate and did not know what was going on.”Towards the end of decedent’s life, Mr. Meier knew decedent “was in very poor health” and “tremendously overweight.”
C.Decedent’s Relationship with Menasco
Menasco testified that he had been a real estate agent and broker since 1987 and an appraiser since 1991. He had been friends with decedent for over 30 years, during which time he represented him in numerous real estate transactions. In 2018, Menasco began helping decedent with abatement issues on the property.
Menasco said decedent was “one of the few people” in his life “that if he said he was going to do something, he did it.” Menasco said that he “didn’t need to have it in writing.” And, he believed decedent “felt the same way about” him. When asked about decedent’s level of comprehension, Menasco said, “Well. [He] could read. He wasn’t a reader. If he had a choice between reading a book or watching T.V., he’d watch T.V. [¶] But he could read. And he wasn’t illiterate, and he wasn’t dumb or slow. [He] was extremely intelligent.”
D. Initial Listing to Sell Property
In July 2019, decedent, with the help of Menasco, listed the property for sale for $1.1 million. Menasco was designated as the “Listing Broker.” Even though Menasco thought the property was worth closer to $700,000, he listed it for $1.1 million because that was the figure decedent requested.
Although the typical listing period is 90 days, the property remained on the market for two years. During this time there was no interest in the property, other than one verbal offer. Menasco testified it was not a real offer because the person never even went inside the property. He further testified that the amount was $900,000; however, he was impeached by his prior deposition testimony and email to Joseph referencing a “verbal offer last year for $950,000 that [decedent] rejected.”
City officials were growing impatient and believed the property had been listed for sale as a stall tactic. Menasco testified the city was “upset because the house didn’t sell.” Menasco further testified that the city “said they were going to start the abatement process again.” At some point, Menasco said he would buy the property “just to buy time and get the [c]ity off [their] backs.”
E.Purchase Agreement
A few days before the listing expired, Menasco prepared the May 11, 2021 purchase agreement. The purchase agreement listed Menasco as the buyer, with a purchase price of $1,012,500. Close of escrow was to occur within 10 days after acceptance.The purchase price of $1,012,500 was to be deposited with the “Escrow Holder pursuant to Escrow Holder instructions.” The “Escrow and Title” section indicated that buyer would pay an escrow fee to “North American Title.”
Under the heading “Other Terms,” the purchase agreement provided: “The buyer, Ken Menasco is a license [sic] real estate appraiser and license [sic] real estate broker. See Addendum.” (See para. 6, original bolding and capitalization omitted.) Menasco and decedent signed the agreement on June 19, 2021. Decedent signed the agreement in his individual capacity; no mention of the property being held in trust was referenced.
The attached addendum, also signed by decedent and Menasco on June 21, 2021, listed seven additional terms: “1) The purchase is being made ‘subject to’ the first and second mortgage which is currently on the property. [¶] 2) The subject property is being purchased in it’s [sic] ‘as is’ condition. [¶] 3) The monthly mortgage is approximately $2,000 per month and will be paid by seller until seller has moved himself and all personal property off of the property. [¶] 4) A third mortgage will be placed on the subject property for $100,000.00 in favor of the seller which represents approximately 10 per cent for transfer tax purposes. Title will be held as joint tenant [sic], buyer is to pay for all remodeling cost and permits. Buyer is responsible for all labor cost [sic] and seller is to maintain current insurance on the property. [¶] 5) After remodeling is completed it will be listed with Westland Real Estate by Ken Menasco (the buyer). Any proceeds of the subject property over $1,500,000.00 will be split 50/50 between Julian Abasolo and Ken Menasco. If for some reason the market declines and we are force [sic] to sell the property for less than $1,025,000 the loss will be split 50/50 between Julian Abasolo and Ken Menasco. [¶] 6) The buyer, Ken Menasco is a license [sic] real estate broker working in this transaction as a principle [sic] Ken Menasco is not representing the seller in this transaction. [¶] 7) The seller, Juliun [sic] Abasolo is to have Mr. Richard Meyers [sic], his attorney, review all documents on seller’s behalf.” (Original bolding and underlining omitted.)
Menasco was present with decedent when decedent’s attorney reviewed the purchase agreement and advised him against creating a joint tenancy. Attorney Meier testified that he understood Menasco would give him a new document to look over and approve; however, he did not receive any further documents. Instead, the deal was “done behind [the attorney’s] back.” Attorney Meier “was aghast that a Real Estate Broker would try and pull this one off on a client who he had to know was illiterate and did not know what was going on.”
F.Joint Tenancy Deed
On July 1, 2021, a joint tenancy deed for the property was recorded by Redwood Escrow Service, Inc., specifying as follows: “FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Julian Abasolo, Trustee of the Julian Abasolo Living Trust dated July 17, 2017 hereby GRANT(S) to Julian Abasolo, an unmarried man, as to an undivided 50% interest and James K. Menasco, a married man, as toan undivided 50% interest, as joint tenants.” (Original bolding omitted.)
G. Menasco’s Explanation of the Transactions
Menasco testified that he did not open an escrow account with North American Title Company or order a title report as specified in the purchase agreement because decedent did not want to pay for “escrow fees” or “for all the notaries and all the additional stuff.” He maintained that he “didn’t instruct the title company to do anything.” According to Menasco, North American Title Company “referred” them to Redwood Escrow. He further testified: “When we got to Redwood Escrow and [the escrow officer] saw the Purchase Agreement and she saw the Joint Tenancy, she said: Well, this won’t work; this Purchase Agreement is no good if you want Joint Tenancy. [¶] And so, she prepared the documents and explained the documents to [decedent] and myself on the transfer of the property.”
Menasco testified that in order to get the required permits for the proposed renovations, he needed to be a licensed contractor or an owner. His plan was to pay the minimum amount of transfer tax and purchase 10 percent of the property, to get on the title, and deal with the code enforcement and city permit division. However, the escrow officer said, “You can’t do Joint Tenancy with ten percent ownership; it has to be fifty-fifty.” Menasco testified that the escrow officer made all of the changes and explained it to him and decedent.
Menasco testified that it would have been a “deal-breaker” if joint tenancy had not been part of the purchase agreement. Menasco testified that he did not want the property conveyed as “ ‘ Tenants in Common’ ”because he wanted “total control.” He added, “I don’t want other people picking my partners. I’m old now.” He further testified: “If Julian [decedent] had died, and we had Tenants in Common, those people would be my partners.” Menasco gave the following example: “If I spent a hundred-thousand dollars and something happened to me Julian [decedent] wouldn’t have had my wife come back and ask for my $100,000 . . .[¶] And if something happened to him, nobody would hold up my project, the same way. So, it protected both of us.”
Menasco read part of the purchase agreement to decedent, but he could not recall which parts. According to Menasco, decedent knew the purchase price was $1,012,500; however, both Menasco and decedent “knew it wasn’t going to close in ten days.”
Menasco further testified that he did not have a million dollars to purchase the property; the property wasn’t appraised for a million dollars; and they couldn’t get a loan on the property because it was “uninhabitable and had abatements on it.” According to Menasco, “It was understood that nobody would get paid until after the remodeling and the house was restored.”
Menasco knew that decedent was afraid of losing his home to the city due to the outstanding abatements. Menasco testified that he never told decedent that the city was going to demolish the property on September 15, 2021. Menasco’s trial testimony was contradicted by his prior deposition testimony, in which he averred that due to the unabated violations lodged by the city, “ ‘[t]hey were saying if they didn’t do this, they were going to demolish the building on September 15, 2021 at 1:00 p.m.’”
III.
STATEMENT OF DECISION
Menasco did not identify any issues for determination by the court. Joseph identified the following nine issues for determination: 1) undue influence exerted by Menasco over decedent to enter into the purchase agreement; 2) undue influence by Menasco by inducing decedent to execute the joint tenancy deed for the property amending decedent’s estate plan; 3) attorney fees under section 21380, subdivision (d); 4) cancellation of the purchase agreement and grant deed; 5) fraud by Menasco based on his admission he entered the purchase agreement knowing he did not have the funds to pay the purchase price; 6) breach of contract due to Menasco’s failure to perform; 7) Menasco’sbreach of his fiduciary duty to decedent; 8) double damages pursuant to section 859 based on undue influence or wrongful taking; and 9) attorney fees pursuant to section 859 and the purchase agreement.
In an abbreviated, proposed statement of decision, the trial court found in Joseph’s favor on all issues. Menasco raised the following six objections to the proposed statement of decision: 1) the court failed to address the standard for adult dependency; 2) the court failed to determine whether the purchase agreement was an executory contract or an executed contract; if this was an executed contract the court needed to clearly identify what the breach was; if executory then court needed to identify what requirements of the purchase agreement did Menasco failed to perform after decedent’s death; 3) the court failed to identify the basis for voiding the joint tenancy deed; 4) the court failed to identify the basis of the breach of fiduciary duty; 5) the court failed to define bad faith and identify the factual basis of the bad faith before imposing double damages under section 859; and 6) the court needed to provide a factual basis for the $950,000 value of the property.
In a truncated, final statement of decision, the court determined Menasco’s testimony was “inconsistent and shaded to present him in the best possible light.” Menasco was found to be a “savvy real estate professional”, whom decedent “trusted . . . completely on real estate matters.” The court further found Menasco’s credibility as “highly suspect” regarding his assertions that decedent was “extremely intelligent” and neither illiterate nor “‘dumb or slow.’”
The court found the presumption of undue influence or fraud as described in section 21380 applied to Menasco because of his fiduciary relationship with decedent as his real estate agent and broker, when the joint tenancy deed was procured, transcribed, and executed. The court determined Menasco failed to overcome this presumption by clear and convincing evidence. Menasco also acted in bad faith when he unduly influenced decedent to remove the property from the trust and convey it in joint tenancy with Menasco on the promise that Menasco would perform according to the purchase agreement.
The court further determined Menasco: 1) exerted undue influence on decedent under Welfare and Institutions Code section 15610.70; and 2) failed to perform under the purchase agreement by “both failing to complete repairs to the property, failing to sell the real property, and failing to pay the agreed upon purchase price.” While Menasco failed to perform, decedent transferred the property to Menasco in joint tenancy trusting that Menasco would perform under the agreement.
The court concluded Menasco’s representation that he ceased representing decedent when he became the buyer was not based on credible evidence. The court concluded the estate was entitled to double damages undersection 859 based on decedent’s status as a dependent adult within the meaning of Welfare and Institutions Code section 15610.23, subdivision (a), based on his inability to read and limited comprehension, as well as his significant medical issues and inability to function without assistance. The court awarded damages in the amount of $1,758,136.06 and attorney fees subject to proof.Using its equitable powers, the court voided the joint tenancy deed and reinstated or reformed it to reflect the property as an asset of decedent’s trust.
Menasco did not lodge any objections to the final statement of decision. This timely appeal followed.
IV.
DISCUSSION
Menasco raises a variety of claims on appeal;we summarize the salient issues as follows: 1) the court failed to apply the governing standards of testamentary and contractual capacity (§§ 6100.5, 812); 2) the court erroneously applied section 21380; and 3) the damage award was speculative and excessive.
A. Principles of Appellate Procedure
An appellant bears the burden of providing an adequate record for review, citing to specific facts in the record in support of any argument made on appeal, and tailoring any argument to the appropriate standard of review; the failure to comply with any of these requirements constitutes forfeiture of any claim of error on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [failure to provide adequate record on appeal requires issue be resolved against appellant]; Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483 [reporter’s transcript is often “indispensable” to establishing error under abuse of discretion or substantial evidence standards of review].)
Here, Menasco failed to include the final statement of decision in the record on appeal. The reporter’s transcript for closing arguments, as well as the related trial briefs are also missing. Additionally, the record does not include all of the exhibits the trial court relied on when rendering the statement of decision. For example, the original MLS listing for the property (Exhibit 27) is not included. We also note that the record is incomplete regarding the pre-trial proceedings—the summary adjudication ruling and related transcripts are not included.
While we could deem Menasco’s failure to provide an adequate record a forfeiture, we have elected not to do so. However, as we explain, Menasco’s issues fail on the merits.
B. Standard of Review
“In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court’s findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).)
“A single witness’s testimony may constitute substantial evidence to support a finding. [Citation.]It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility. [Citation.] ‘A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’ [Citation.] Specifically, ‘[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision.’ ” (Thompson, supra, 6 Cal.App.5th at p. 981.)
To disable the doctrine of implied findings on appeal, an “appellant must secure a statement of decision under Code of Civil Procedure section 632 and, pursuant to Code of Civil Procedure section 634, bring any ambiguities and omissions in the statement of decision to the trial court’s attention.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) “Where a party fails to ‘specify ...controverted issues’ or otherwise ‘make proposals as to the content’ of a statement of decision under [Code of Civil Procedure] section 632 (forcing the trial court to guess at what issues remain live during preparation of the statement of decision), or where a party complies with [Code of Civil Procedure] section 632 but fails to object under [Code of Civil Procedure] section 634 (depriving the trial court of the opportunity to clarify or supplement its statement of decision before losing jurisdiction), objections to the adequacy of a statement of decision may be deemed waived on appeal.”(Thompson, supra, 6 Cal.App.5th at p. 983.)
Here, Menasco failed to identify any issues for decision by the court. And although he raised objections to the proposed statement of decision, he failed to bring any deficiencies in the final statement of decision to the court’s attention. Accordingly, we apply the doctrine of implied findings. We will infer the trial court made the implied findings favorable to the estate and will review those implied factual findings under the substantial evidence standard. (Fladeboe v. American Isuzu Motors, Inc., supra, 150 Cal.App.4th at pp. 59–60.)
C. Applicable Law
‘ “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.’ ([Welf. & Inst. Code,] § 15610.70.) In certain circumstances, there may be a presumption of undue influence. Section 21380 “prohibits donative transfers to broad categories of persons who, because of their relationship with the [testator], might exercise undue influence.” (Butler v. LeBouef (2016) 248 Cal.App.4th 198, 208.) As is relevant here, “[a] provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence: [¶] . . . A person who transcribed or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.” (§ 21380, subd. (a)(2).) The presumption of fraud or undue influence arising for a donative transfer to afiduciary may be rebutted by clear and convincing evidence that the donative transfer was not the product of fraud or undue influence. (§ 21380, subd. (b).) Finally, “[i]f a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.” (§ 21380, subd. (d).)Section 21380 does not apply to a donative transfer to a “person. . . related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.” (§ 21382, subd. (a).)
D.Menasco’s Argument Regarding Testamentary and Contractual Capacity is Without Merit
Menasco argues the trial court erred by failing to apply the governing standards of testamentary capacity and contractual capacity under sections 6100.5 and 812. Although it appears Menasco raised this issue in his motion for summary judgment, nothing suggests that he raised this issue at trial; moreover, he did not challenge either the proposed or final statement of decision on this ground. It is axiomatic that a party must raise an issue in the trial court if they would like appellate review. (Ramirez v. Superior Court (2023) 88 Cal.App.5th 1313, 1335.) Even assuming this issue was adequately preserved on appeal, it fails on the merits. First, section 6100.5 pertains to a person’s testamentary capacity to make a will—an issue not raised herein. Also, to the extent section 812 sets forth the general sliding-scale of contractual capacity (see Lintzv. Lintz(2014) 222 Cal.App.4th 1346, 1352–1353),undue influence—which is at the heart of this case—does not require a showing that the transferor lacked contractual capacity. Rather, the issue is whether the person’s free will was overborne by excessive persuasion. (Welf. & Inst. Code, § 15610.70.) In other words, an individual with contractual capacity may still be subject to undue influence depending on the circumstances. Accordingly, any error in failing to determine whether decedent had contractual capacity under section 812 is not dispositive of whether he was subject to undue influence; thus, any error would be harmless.
E. The Trial Court Did Not Err in Applying the Presumption of Undue Influence and Determining Menasco Failed to Rebut It
Menasco asserts a multi-front challenge to the application of section 21380.1) the joint tenancy deed was not a donative transfer but based on adequate consideration—namely his improvements to the property; 2) he did not transcribe or cause the deed to be transcribed; 3) he was not in a fiduciary relationship with decedent when the joint tenancy deed was transcribed; and 4) section 21382 exempts the joint tenancy deed from the presumption of undue influence due to his “preexisting relationship” with decedent.
1. Substantial Evidence Supports the Implied Finding that The Joint
Tenancy Deed Was a Donative Transfer
Menasco asserts the joint tenancy deed was not a donative transfer because it was “executed pursuant to a structured investment agreement” that required him to “assume mortgage obligations . . ., fund and oversee the renovations, and share in profits or losses.” According to Menasco, these “hallmarks of a business transaction” are incompatible with the finding of a “gratuitous gift.”
Although not cited by either party, we find guidance in Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128 (Jenkins), which examines the meaning of “donative transfer” under former section 21350, the predecessor to section 21380, and under section 21380. (Id. at pp. 1130–1131.) The decedent in Jenkins quitclaimed his house to his caregiver (who did not dispute that she drafted the quitclaim deed), and Jenkins, the trustee and beneficiary of the decedent’s trust, sought to void the transfer. (Id. at pp. 1131–1134, 1144 & fn. 8.) The court considered the meaning of “donative transfer” as a matter of first impression. (Id. at p. 1142.) It observed there was no statutory definition, and the statutory language was ambiguous. (Id. at pp. 1138–1139.) After reviewing the legislative history, the court concluded that “donative transfer” “include[d] not only a transfer for zero consideration, but also a transfer for unfair or inadequate consideration.” (Id. at p. 1142.) The test for inadequate consideration was not whether the transfer exceeded the value of the consideration, but whether the consideration received was fair and reasonable under the circumstances. (Ibid.)
Here, we conclude substantial evidence supports the court’s implied finding that the joint tenancy deed was a donative transfer based on inadequate consideration.Although Menasco may have contributed some consideration in the form of repairs to the property, overall that consideration was unfair and unreasonable under the circumstances. Menasco received a $950,000 property for which he paid nothing other than some remodeling costs. Menasco’s argument to the contrary is unavailing.Even if the purchase agreement was enforceable, its terms did not provide fair and reasonable consideration under the circumstances.
Menasco put no money down based on the promise that he would remodel the property and then put it up for sale as the listing agent—presumably receiving a commission. Decedent’s interest in the proceeds was contingent upon the property selling for more than $1.5 million; whereas, Menasco was entitled to proceeds regardless of the sales price. Moreover, if the property sold for less than $1,025,000, decedent would be required to bear half of the loss. So structured, Menasco had everything to gain, while decedent had everything to lose. Regardless of what the property sold for, Menasco would be remunerated. And if the property sold for less than $1,025,000, Menasco only had to shoulder half the loss. Considering the remodel costs, it cannot be said that Menasco paid nothing for the property, but it was next to nothing based on the structure of the deal.
2. Substantial Evidence Supports the Implied Finding that Menasco “Caused” the Joint Tenancy Deed to be Transcribed
Menasco next argues the trial court erred in concluding that he “caused”the joint tenancy deed to be transcribed. He maintains there is no evidence that he actively participated in the drafting or transcribing of the joint tenancy deed. Rather, he asserts an unnamed escrow officer—who, incidentally, did not testify—prepared the joint tenancy deed. While we agree there was no direct evidence that Menasco prepared the joint tenancy deed himself—no such evidence was required. “ ‘Direct evidence as to undue influence is rarely obtainable and hence a court or jury must determine the issue of undue influence by inferences drawn from all the facts and circumstances.’(Estate of Hannam (1951) 106 Cal.App.2d 782, 786; see David v. Hermann (2005) 129 Cal.App.4th 672, 684 [proof of undue influence in the execution of a testamentary instrument by circumstantial evidence usually requires a number of factors]; In re Estate of Easton (1934) 140 Cal.App. 367, 371 [requiring direct or circumstantial evidence of‘pressure which overpowers the volition of the testator and operates directly on the testamentary act’].) Thus, . . . undue influence[] may be established by circumstantial evidence. [Citations.] As a matter of law, the probate court’s undue influence finding need not be supported by direct evidence of undue influence at the moment decedent signed the [challenged] instruments.’ ” (Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1355, italics added.)
Here, there was ample circumstantial evidence that Menasco “caused” the joint tenancy deed to be transcribed. First, he testified that not having joint tenancy would have been a “deal-breaker.” In explaining why he did not pursue a tenancy in common, he said that in that scenario he “wouldn’t have . . . total control.” Second, he prepared the purchase agreement, which required that ownership be held in joint tenancy. Third, and most importantly, five witnesses testified that decedent was illiterate and had comprehension problems; decedent relied on others to read and explain documents to him. Decedent’s former attorney testified that decedent would not have understood the consequences of holding joint title with Menasco – i.e., if he died before the renovations were completed, Menasco would solely own the property and decedent’s family would get nothing.
We are not persuaded by Menasco’s assertion that decedent understood what joint tenancy meant and its consequences. As the trial court noted, Menasco’s testimony about decedent’s reading and comprehensionabilities was in “stark contrast” to the five witnesses who testified about his severe limitations in these areas, which required him to rely on others. The court further remarked that Menasco’s credibility was “highly suspect.” It was within the exclusive province of the court, sitting as the trier of fact, to determine Menasco’s credibility. (See People v. Young (2005) 34 Cal.4th 1149, 1181.) We will not second-guess this determination on appeal. (Thompson, supra, 6 Cal.App.5th at p. 981.)
Menasco cites Rice v. Clark (2002) 28 Cal.4th 89, 101 (Rice) for the position that passive involvement or mere benefit is insufficient to invoke the presumption. In Rice, our supreme court held “a person who provides information needed in the instrument’s preparation and who encourages the donor to execute it, but who does not direct or otherwise participate in the instrument’s transcription to final written form” did not cause the instrument to be transcribed, pursuant to former section 21350, and was therefore not “presumptively disqualified from taking under that instrument.” (Id. at p. 92, italics added.) The individual in Rice gave the attorney a list of the decedent’s assets, arranged appointments with the attorney and drove the decedent to those appointments, urged the attorney’s secretary to prepare the documents promptly, and encouraged the decedent to sign them; the court held he did not “‘cause’” the instruments to be transcribed. (Id. at p. 105.) Here, by contrast, Menasco actively participated in securing joint tenancy of the property. Not only did he draft the purchase agreement upon which the joint tenancy deed is based, he accompanied decedent to his attorney’s office and was present during the meeting to discuss the terms of the purchase agreement. There is also evidence suggesting that Menasco preyed on decedent’s fear that the city would take the property if the code violations were not abated and that the purchase agreement (enforceable or not)enticed decedent to sign the joint tenancy deed.Menasco engaged in more than passive involvement. There is substantial evidence (albeit circumstantial) that he directed the joint tenancy deed to be transcribed.
3. Substantial Evidence Supports the Finding that Menasco Hada Fiduciary Relationship with Decedent When The Joint Tenancy Deed Was Transcribed
It is well established that a real estate broker owes a fiduciary duty to his client, which “requires the highest good faith and undivided service and loyalty.” (Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25.) Despite this recognized principle, Menasco argues he was not in a fiduciary relationship with decedent at the time the joint tenancy deed was transcribed because the purchase agreement expressly disclosed Menasco’s role as a buyer and disclaimed that he was not representing decedent in the transaction.
“Real estate brokers are subject to two sets of duties: those imposed by regulatory statutes, and those arising from the general law of agency.” (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755.) “ ‘The existence and extent of the duties of the agent to the principal are determined by the terms of the agreement between the parties, interpreted in light of the circumstances under which it is made, except to the extent that fraud, duress, illegality, or the incapacity of one or both of the parties to the agreement modifies it or deprives it of legal effect.’ ” (Ibid.)
Under the general law of agency, an agent cannot unilaterally define the scope of the agency. (See Civ. Code, § 2322.) That said, an agent may limit the extent of fiduciary duties by the terms of the contract with the principal, limiting the scope of the agent’s responsibilities. (Miller & Starr, 2 Cal. Real Est. § 3:34 (4th ed.), citing Restatement (Third) of Agency § 8.06.) However, when an agent seeks the principal’s consent to waive the general fiduciary duty of loyalty, “the agent must obtain the principal’s express informed consent after full disclosure of all material facts, and must continue to act in good faith and to deal fairly with the principal in all matters.” (Ibid.)
Menasco claims decedent “proceeded with full knowledge and benefit, having received his full asking price and retained possession and control of the [p]roperty.” The record belies this assertion. First, there is no evidence of informed consent. Given that decedent relied on others to read and explain documents, together with Menasco’s admission that he read part of the purchase agreement to decedent, it is reasonable to conclude that decedent neither read nor understood the meaning of Menasco’s disclaimer. Second, decedent did not receive the full asking price or any portion thereof from Menasco. Menasco testified that he did not have the funds to purchase the property and given its state of disrepair a loan to secure the property was not possible. As discussed ante, the joint tenancy deed was secured by Menasco’s promise to renovate the property, which we have explained constituted inadequate consideration. Third, under the terms of the purchase agreement, decedent was obligated to pay the mortgage until such time as he vacated the property and removed his personal property. Finally, given decedent’s illiteracy and comprehension problems, inclusion of the joint tenancy provision, coupled with the purported disclaimer, was inherently unfair under the circumstances.
4. Section 21382 Does Not Apply to Menasco
Menasco asserts that even if the presumption of undue influence applied, section 21382 exempted the joint tenancy deed based on his “preexisting relationship” with decedent. Not only has Menasco forfeited this issue by failing to raise it in the trial court, he misrepresents the plain language of the statute. Section 21382 exempts “[an] instrument that is drafted by or transcribed by a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.” (Italics added.) Section 21374 defines “related by blood or affinity” to include spouses, domestic partners, and “relatives within a specified degree of kinship.” (Italics added.) Menasco’s 30-year friendship with decedent notwithstanding, he is not related to decedent within the meaning of the Probate Code.
5. Menasco Failed to Rebut the Presumption of Undue Influence
The presumption of undue influence “may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.” (§ 21380, subd. (b).) On appeal, Menasco makes no attempt to rebut the presumption. Instead, he focuses on the court’s purported error in shifting the burden without establishing the presumption of undue influence and on how the court’sfinding is unsupported by clear and convincing evidence. Accordingly, Menasco has forfeited any argument on appeal that he rebutted the presumption. (See, e.g., Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal deemed forfeited or waived]; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177–1178 [“[g]enerally, appellants forfeit or abandon contentions of error regarding the dismissal of a cause of action by failing to raise or address the contentions in their briefs on appeal”]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [“[c]ourts will ordinarily treat the appellant’s failure to raise an issue in his or her opening brief as a waiver of that challenge”].)In any event, Menasco presented no credible evidence to rebut the presumption.
Notwithstanding the presumption, this case was replete with evidence supporting a finding that Menasco exerted undue influence over decedent under Welfare and Institutions Code section 15610.70. (See also CACI No. 3100[Financial Abuse – Essential Factual Elements], and CACI No. 3117 [Financial Abuse – “Undue Influence” Explained].) “The test for ‘undue influence’ is governed by a series of listed factors, including the ‘vulnerability of the victim’ ([Welf. & Inst. Code,] § 15610.70, subd. (a)(1)), the ‘influencer’s apparent authority’ (id., subd. (a)(2)), the ‘actions or tactics used by the influencer’ (id., subd. (a)(3)), and the ‘equity of the result’ (id., subd. (a)(4)).” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 857.)
As to the first factor, the vulnerability of the victim, “[e]vidence of vulnerability may include, but is not limited to incapacity, illness, injury, age, ... impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.” (Welf. & Inst. Code, § 15610.70, subd. (a)(1).) These factors were present here. Decedent, who due to his physical and intellectual limits, was entirely dependent on others for all facets of his life. Multiple witnesses testified that decedent could not read and relied on others to explain things to him. Witnesses also testified about decedent’s trusting nature, which left him susceptible to being taken advantage of. He was also morbidly obese and had suffered numerous strokes during the last three years of his life.
There was also evidence Menasco knew or should have known of decedent’s vulnerability. Menasco testified that he had known decedent for over 30 years. It is unfathomable how during the course of this long-term friendship Menasco was unaware of decedent’s cognitive limitations and his physical ailments.
As to the second factor, the influencer’s apparent authority (Welf. & Inst. Code, § 15610.70, subd. (a)(2)), there was evidence decedent placed a great deal of trust in Menasco. Not only had decedent and Menasco been friends for 30 years, Menasco had represented decedent in several prior real estate transactions. Menasco was in a position to influence decedent because he trusted him, and Menasco knew or should have known about his vulnerabilities. (See Estate of Baker (1982) 131 Cal.App.3d 471, 475, 480 [confidential relationship existed between the testator and a trusted friend the testator considered knowledgeable].)
The third factor is evidence of the influencer’s “actions or tactics,” such as “[c]ontrolling . . . the victim’s access to information,” “[u]se of affection, intimidation, or coercion” and “[i]nitiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.” (Welf. & Inst. Code, § 15610.70, subd. (a)(3).)Here, there is evidence that Menasco was the point person for dealing with the abatement notices from the city. Using this information, Menasco preyed on decedent’s fear of losing his house. Also, the joint tenancy deed was filed without review from decedent’s attorney and occurred less than three months before decedent’s death. The evidence suggests that Menasco—an experienced realtor and real estate broker–used his expertise to effect the joint tenancy transfer.
Finally, there was evidence of an inequitable result. Instead of the property going to decedent’s brother as decedent had intended, upon
decedent’s death Menasco became the sole owner of the property. (See Welf. & Inst. Code, § 15610.70, subd. (a)(4) [divergence from a testator’s prior intent is relevant to the inequity analysis].) As discussed, there is ample evidence that Menasco was actively involved in transferring the property from the trust to a joint tenancy. (See Estate of Carter (2003) 111 Cal.App.4th 1139, 1154 [substantial evidence includes reasonable inferences]; Getty v. Getty (1972) 28 Cal.App.3d 996, 1003 [same].)
F. The Court Properly Applied Section 859
Menasco argues the damages award was speculative and excessive. According to Menasco, the court relied on a “hypothetical” sales price, which it then erroneously doubled under section 859. Also, for the first time in his reply brief, Menasco argues that “[d]ouble damages require bad faith taking of property.” Even if this argument werenot forfeited for Menasco’s failure to raise it in his opening brief (see Cox v. Griffin, supra, 34 Cal.App.5th at p. 453), his argument that his “[o]ngoing performance” is inconsistent with bad faith is without merit. We address Menasco’s claims in reverse order.
Section 859 provides for an award of double damages under three circumstances: “[1] If a court finds that a person has in bad faith wrongfully taken ... property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or [2] has taken . . . the property by the use of undue influence in bad faith or [3]through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part.” (Italics added.)
Here, it is unclear under which circumstance the court awarded double damages. From the statement of decision it would appear that the court relied on all three. We need not determine the specific prong because substantial evidence supports the implied finding that Menasco acted in bad faith as to all three.Section 859 does not define “bad faith.” As our colleagues in Division 2 have stated, “ ‘[B]ad faith’ can be many different things, depending on the context. For example: The general rule is that an agent is not liable on a written contract in the name of the principal. So, if the agent has no authority to make the contract, the usual remedy of the third party is on the warranty of authority. But if, in addition to the lack of authority, there is ‘bad faith’ – that is, the agent enters into the contract without believing, in good faith, that he or she has authority to do so – the California rule makes the agent liable on the contract as a principal. [Citations.] [¶] Code of Civil Procedure section 580b is the anti-deficiency statute, shielding a mortgagor from liability in damages. However, if the mortgagor commits waste in ‘bad faith,’ he or she can be liable for damages. [Citation.] [¶] The most frequent application of ‘bad faith’ is in insurance cases, the concept based on a tortious breach of the covenant of good faith and fair dealing.”(Hill v. Superior Court (2016) 244 Cal.App.4th 1281, 1287–1288.) “As noted in Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100 [citation], ‘ “ ‘[b]ad faith, is defined as ‘[t]he opposite of “good faith,” generally implying or involving . . . a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence . . . .’ ” ’ ” (People v. Superior Court (Sokolich) (2016) 248 Cal.App.4th 434, 447.)
Applying the aforenoted principles governing “bad faith” determinations, we conclude there is substantial evidence in the record to support the court’s ruling that Menasco exerted undue influence in bad faith in the procurement of the joint tenancy deed. Menasco was present with decedent when decedent’s attorney advised him against creating a joint tenancy. Attorney Meier testified that he understood Menasco would give him a new document to look over and approve; however, he did not receive any further documents. Instead, the deal was “done behind [the attorney’s] back.” Attorney Meier “was aghast that a Real Estate Broker would try and pull this one off on a client who he had to know was illiterate and did not know what was going on.” Menasco testified that he did not want to hold the property as tenants in common because he wanted “total control” in the event that decedent died. It was well known that decedent “was in very poor health” and “tremendously overweight” towards the end of his life. Indeed, decedent died less than three months after the joint tenancy was established. This evidence, together with all of the evidence supporting the finding that Menasco exerted undue influence over decedent, constitutes substantial evidence that Menasco had an ulterior motive when he facilitated the transfer of the property from the trust into a joint tenancy. Menasco used his real estate expertise to prey on a long-term client and friend, who was overly trusting, functionally illiterate, suffering from serious medical conditions, and concerned about the city taking and demolishing his property.
Finally, Menasco criticizes the court for relying on the $950,000 verbal offer without considering any “market data.” However, no such evidence was admitted. Menasco cites no authority—nor have we discovered any—regarding the calculation of the “value of the property” under section 859. Rather, he relies on principles of contract damages. But the court did not award contract damages. Instead, the trial court awarded relief under section 850 and 859.“ ‘Section 850 et seq. provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person.’ [Citation.] The statutory scheme’s ‘evident purpose’ is to carry out the decedent’s intent and to prevent looting of estates.” (Estate of Kraus (2010) 184 Cal.App.4th 103, 111.)
Consistent with this purpose and the overall equitable nature of relief sought under section 850, we conclude the court was not required, as Menasco suggests, to determine the value of the property “with reasonable certainty and supported by concrete evidence of actual loss.” We are similarly not persuaded by his misguided interpretation of section 859 as requiring damages be based on “actual loss.” Section 859 is a civil penalty imposed for enumerated misconduct; it is “punitive in nature.” (Estate of Kraus, supra, 184 Cal.App.4th at pp. 111–112.) “However, double damages are not the equivalent of ‘punitive damages, and the proof required for punitive damages is not required.’ ” (Conservatorship of Ribal (2019) 31 Cal.App.5th 519, 525.)
Here, the court assigned a value of $950,000 based on Menasco’s deposition testimony that a verbal offer had been made in this amount but had been turned down by decedent. Also, in evidence—but not included in the record on appeal—was an email from Menasco to Joseph confirming the prior verbal offer of $950,000. We conclude the assigned value was permissible under section 859 and supported by substantial evidence.
In sum, we conclude the trial court properly applied section 859.
III. DISPOSITION
The judgment is affirmed. Joseph is entitled to his costs on appeal.

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Sweet, J.*

WE CONCUR:

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Brown, P. J.

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Streeter, J.

A173231/Abasalo v. Menasco