Eskra v. Grace (In re Eskra)

• Decision Date: 03 May 2022
• Docket Number: A162671
• Citation: 78 Cal.App.5th 209,293 Cal.Rptr.3d 370
• Parties: ESTATE OF Scott ESKRA, Deceased. Brandy L. Eskra, Petitioner and Appellant, v. Catherine Grace et al., Objectors and Respondents.
• Court: California Court of Appeals Court of Appeals

78 Cal.App.5th 209

293 Cal.Rptr.3d 370

ESTATE OF Scott ESKRA, Deceased.Brandy L. Eskra, Petitioner and Appellant,

v.Catherine Grace et al., Objectors and Respondents.

A162671

Court of Appeal, First District, Division 5, California.

Filed May 3, 2022

Perry, Johnson, Anderson, Miller & Moskowitz, LLP, Deborah S. Bull, Santa Rosa, for Petitioner and Appellant

Mathews, Kluck, Walsh & Wykle, LLP, Kelly M. Walsh, Eureka, for Objectors and Respondents

Moskovitz Appellate Team, Myron Moskovitz for Objectors and Respondents

SIMONS, J.

Brandy L. Eskra (Brandy) filed a probate petition seeking to be appointed the personal representative of her late husband's estate. The trial court denied her petition based on a premarital agreement (Agreement) that waived Brandy's interests in her husband's separate property, and the court appointed his parents (respondents) co-administrators of the estate. In a prior appeal this court held Brandy was entitled to introduce extrinsic evidence in support of her argument that she and her late husband mistakenly believed the Agreement would apply only in the event of divorce, rather than upon death. On remand, the trial court found that the mistake was a unilateral mistake on Brandy's part and that she was not entitled to rescission. Brandy again appealed.

We affirm. Because Brandy failed to read the Agreement and to meet with her attorney to discuss it before signing it, she bore the risk of her mistake and is not entitled to rescission. (See Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 283, 109 Cal.Rptr.2d 807, 27 P.3d 702 ( Donovan ); Casey v. Proctor (1963) 59 Cal.2d 97, 28 Cal.Rptr. 307, 378 P.2d 579 ( Casey ); Civ. Code, § 1577.)¹ In addition, any error by the trial court in failing to make findings regarding voluntariness required by Family Code section 1615, subdivision (c), was not prejudicial.

BACKGROUND²

On May 2, 2015, Brandy married Scott Eskra (Scott).³ Previously, Scott had been married to Stephanie Simera. Scott had one daughter, who was nine years old when Scott married Brandy. Scott died intestate in an accident in March 2018.

The day before Brandy and Scott married, they executed the Agreement. The trial court concluded, and the parties do not dispute, that the language of the Agreement "effectively terminated any rights Brandy had in Scott's estate, should he predecease her. If the agreement is valid and enforceable, Scott's minor daughter will inherit Scott's estate by way of intestate succession. If the agreement is not valid or enforceable, then Brandy and Scott's minor daughter would share in Scott's estate."

The Agreement

In April 2015, shortly before their wedding date, Brandy learned that Scott wanted a premarital agreement. Brandy engaged the services of attorney Tracy Rain and met with her on April 24. On May 1, Brandy and Scott signed the Agreement at the office of Scott's attorney, Laurence Ross. Mr. Ross was present at the signing, along with a notary, but Ms. Rain was not present.

In the 11-page Agreement, Brandy and Scott "acknowledge to each other that each does not now claim any right or interest in the present or future income, property, or assets of the other." The Agreement provides that "[t]he parties desire that all property owned by either of them be preserved as the separate property of each party. All property acquired by either party by gift or inheritance during their marriage, or by earnings, will be entirely his or her separate property." The Agreement specifies that the parties intend to occupy Scott's home, that any payments made by Brandy toward that property would become Scott's separate property, and that Brandy would not be reimbursed for any such payments "in the event of the parties’ separation or divorce, or upon the death of either party."

In addition, in paragraph 5.01, the Agreement expressly waives on behalf of each party, "all right, claim, or interest, ... that he or she may acquire in the separate property of the other by reason of the marriage, including, without limitation: [¶] 1) Community property rights; [¶] 2) The right to a family allowance; [¶] 3) The right to a probate homestead (a homestead set apart by the court for the use of a surviving husband or wife and the minor children out of the common property or out of the real estate belonging to the deceased); [¶] 4) Right to have exempt property set aside[.]" The Agreement states that both parties were represented by independent counsel. It includes a standard integration clause stating that it "contains the entire understanding and agreement of the parties."

Brandy's Petition and the Eskra I Appeal

After Scott died in 2018, Brandy petitioned to be appointed personal representative to administer his estate. Scott's ex-wife, Ms. Simera, filed an objection in her capacity as guardian ad litem for her and Scott's minor daughter. Scott's parents, respondents Steve Eskra and Catherine Grace, filed a competing petition for appointment as personal representatives.

Ms. Simera and respondents filed a motion in limine to exclude extrinsic evidence concerning the Agreement. The trial court granted the motion in limine, reasoning that Brandy was not permitted to introduce extrinsic evidence to contradict the terms of the Agreement. The court also found the Agreement was voluntary and enforceable. The court denied Brandy's petition and granted the competing petition, appointing respondents as co-administrators of the estate.

In the July 2020 Eskra I decision, this court rejected Brandy's contention that extrinsic evidence was admissible to show a latent ambiguity in the Agreement, concluding the "[A]greement is not reasonably susceptible to an interpretation that it is inapplicable in the event of death." ( Eskra I , supra, A158136.) On the other hand, this court concluded the trial court erred in barring extrinsic evidence for the purpose of proving "the parties intended the [A]greement only to apply in the event of divorce or dissolution of marriage, but the [A]greement does not reflect this intent due to drafting errors." ( Ibid . ) This court remanded with directions to accept evidence "to determine whether the parties had a mistaken belief concerning the meaning of the" Agreement. ( Ibid. ) This court also stated, "If Brandy's evidence establishes a unilateral mistake, it would be up to the trial court in the first instance to determine its import." ( Ibid. ) This court found it unnecessary to address Brandy's claim the Agreement was involuntary under Family Code section 1615.

Evidence on Remand

On remand, the trial court set the matter for trial and the parties filed pretrial briefs. On the first day of trial, the court ruled the scope was limited to considering Brandy's theory of unilateral or mutual mistake; the court declined to consider whether the Agreement was entered voluntarily within the meaning of Family Code section 1615. The court received testimony over two court days.

Scott's attorney, Mr. Ross, testified Scott said he wanted a premarital agreement that would provide that his property would remain his property, in the event of either divorce or his death. Brandy testified that, on April 22, 2015, Scott told Brandy she needed to see an attorney about the proposed premarital agreement. Scott gave her a card with three names, and she picked Ms. Rain. Mr. Ross then prepared a draft agreement and emailed it to Ms. Rain.

Ms. Rain testified she met with Brandy to go over the draft premarital agreement in the morning on April 24, 2015. At the meeting, Ms. Rain explained the draft agreement to Brandy over the course of an hour and a half. Ms. Rain testified Brandy had understood Scott wanted an agreement addressing what would happen if they divorced, but the inclusion of provisions relating to death "was news to her." Brandy testified she became "really upset," telling Ms. Rain that the agreement "wasn't supposed to be about death" but was "only in the event of a divorce." Ms. Rain testified she told Brandy at the end of the meeting, "I'll seek to have the death applicable clauses redacted, and you'll talk to your husband or your fianc[é] to confirm that that's what both of you want." Brandy testified that Ms. Rain told her to go home and talk to Scott and that she did not have a specific understanding about which section or sections Ms. Rain believed should be removed.

Brandy testified she talked to Scott about 45 minutes later and he said he "didn't know anything about death" in the draft agreement. She further testified that he immediately telephoned his attorney, Mr. Ross, in her presence and that she heard Scott say, "This isn't about death. It's about divorce only. Take it out." Brandy understood that he was talking to Mr. Ross. Later, in the evening, Scott told her, "I didn't know that that was in there. It wasn't supposed to be in there." Brandy testified her teenage son was present during the evening conversation, and the son testified he remembered an instance before the wedding when Scott and Brandy were both upset there was "a death clause" in the draft agreement because "they only wanted it in case of divorce."

Also on April 24, 2015, Ms. Rain sent an email to Mr. Ross stating, "[Brandy] believes that it is the intent of both [Scott] and herself to protect the separate property nature of their acquisitions — both before and during marriage — in the event that the marriage ends in divorce, but not in the event that the marriage ends in death." She continued, "I believe [Brandy] intends to discuss/confirm this [with Scott] today. To that extent she is hopeful that [Scott] will agree to redact from the [draft agreement], prior to its execution," several subsections of paragraph 5.01 waiving specified spousal property interests following death.⁴

Mr. Ross testified that he discussed Ms. Rain's email with Scott and that Scott confirmed he wanted the premarital agreement to apply in case of death as well as divorce. Mr. Ross advised Scott that the deletions requested by Ms....