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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Fisher v. Fisher

California Court of Appeal

• Citations: None known

• Docket Number: D083806

• Opinion

• Authorities (41)

• Cited By (0)

• Summaries (0)

• Similar Cases (56)

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Combined Opinion

Filed 2/26/26
CERTIFIED FOR PARTIAL PUBLICATION *

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TODD A. FISHER, Individually and as D083806
Successor in Interest, etc.,

Plaintiff and Respondent,
(Super. Ct. No. 37-2021-
v. 00044389-CU-MC-CTL)

BRUCE B. FISHER et al.,

Defendants and Appellants.

APPEALS from a judgment and order of the Superior Court of
San Diego County, Timothy B. Taylor, Judge. Affirmed.
Bruce B. Fisher, in pro. per., for Defendant and Appellant
Bruce B. Fisher.
Sheppard, Mullin, Richter & Hampton and Todd E. Lundell for
Defendant and Appellant Kent Fisher.
Williams Iagmin and Jon R. Williams for Plaintiff and Respondent.
This wrongful death case has its origin in a feud between four adult
brothers over the division of their parents’ estate. Decedent Wade Fisher and
plaintiff Todd Fisher were on one side. Defendants Brittin Fisher and Kent

• Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion parts II and III. Fisher were on the other. Wade, the youngest, was a recovering alcoholic who had been sober for 15 years. After their father died, Wade cared for their mother before she went into assisted living, then he moved to Hawaii to escape the family dysfunction. Todd’s wrongful death claims stem from a phone call Brittin and Kent made to the San Diego Police Department (SDPD) five months after their mother died. Todd alleged that Brittin and Kent falsely reported their mother missing, even though they knew she had died of natural causes, with the intent to cast suspicion on Todd and Wade. As a result, SDPD contacted Wade by telephone to inquire about their mother but quickly dropped the matter after learning she was dead. The phone call greatly upset Wade. A week later, he relapsed and drove his motorcycle drunk with marijuana in his system and without a helmet. He crashed and died. A psychologist testified that the phone call caused Wade’s relapse. Todd sued Brittin and Kent for wrongful death on behalf of himself and Wade’s estate. A jury found Brittin and Kent liable for negligence and intentional infliction of emotional distress (IIED). The jury also found Brittin and Kent conspired to make false statements to SDPD requiring law enforcement intervention, and acted with malice, oppression, or fraud. On causation, the jury found their conduct was a substantial factor in causing severe emotional distress and harm to Wade. The jury awarded about $5.1 million to Wade’s estate and $4.3 million to Todd, including $80,000 in punitive damages against each defendant. On appeal, defendants do not contest any of the jury’s liability findings, including on cause in fact. They contend, however, that their tortious conduct was not the legal cause of Wade’s relapse and drunk driving death as a matter of law. In the published portion of this opinion, we reject this

2
contention and conclude that defendants’ intentional infliction of emotional
distress was a legal cause of Wade’s death. Applying the broader standard of
legal cause applicable to intentional torts, we find that Wade’s death was
within the scope of liability for wrongful death based on the IIED verdict. On
this record, no public policy exists to restrict liability for an intentional tort
which the jury found to have been a substantial factor in causing the severe
emotional distress that resulted in Wade’s relapse and subsequent death. In
the unpublished portion of this opinion, we reject the defendant’s remaining
contentions. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the relevant facts in the light most favorable to the
judgment.
A. Dispute Over Parents’ Assets and Estates
Leonard and Gale Fisher had four sons, from oldest to youngest:
Brittin, Todd, Kent, and Wade. In 2012, for tax reasons, Leonard and Gale
asked their adult sons to discuss how to divide some properties among
themselves while both parents were still living. The brothers could not agree
on how to apportion their parents’ assets, which began a protracted and
acrimonious series of disputes between Todd and Wade on one side and
Brittin and Kent on the other. One particularly contentious argument
resulted in Brittin pushing Wade and biting Wade’s face. Soon after that
incident, Wade told his brothers he wanted nothing to do with the dispute
over their parents’ assets and he would refuse to take any money from their
estates.
From that point onward, Todd and Wade maintained a close
relationship with their parents, visiting them often and taking them to doctor
appointments. Todd and Wade were also good friends with each other,

3
sharing hobbies and vacationing together. Kent and Brittin, however, had
limited contact with their parents and very little direct communication with
Todd and Wade.
Leonard died in June 2014 and his will dictated that the four brothers
should draw straws to determine who would receive which of four asset
“buckets” at his will’s reading. Unfortunately, the drawing of straws did not
resolve their conflicts. When Todd became the trustee of Leonard’s trust, he
terminated Kent’s maintenance work on some of his father’s properties. Kent
and Brittin accused Todd of misappropriating Leonard’s assets, including a

boat and a family-owned business. Their disputes led to probate litigation. 1
According to Todd, the four brothers eventually inherited equal parts of
$550,000 from Leonard’s estate outside of the trust. According to Kent,
however, Wade had not received any part of his inheritance from either
Gale’s or Leonard’s estate before his death.
B. Gale’s Death
The conflict among the brothers also caused a rift to form between Gale
on the one hand and Brittin and Kent on the other. In 2017, Gale decided to
disinherit Brittin and Kent because she was upset they were litigating
Leonard’s trust and probate. She amended her trust to state that for
purposes of any distribution under its provisions, Brittin and Kent “shall be
considered to have predeceased [Gale] without issue.” She simultaneously

1 The probate court eventually modified certain provisions of Leonard’s
trust and ordered that each of the brothers receive some money from
Leonard’s estate. We affirmed the court’s order on appeal. (See Fisher v.
Fisher (Sept. 8, 2022, D078019) [nonpub. opn.].) The jury did not receive any
evidence about this probate order or our prior opinion.
4
executed a will which disinherited Brittin and Kent by excluding them from
the definition of “children.”
In the meantime, Wade took care of Gale in the final years of her life
and Todd visited her two or three times a week. A caretaker who worked
for Gale from 2014 to 2019 testified that Gale lived in her Point Loma home
from May to October during the year, and then in her home in Indian
Wells the rest of the year. Wade lived with Gale at her Point Loma home
and sometimes stayed with her in Indian Wells also. Gale’s caretaker
only saw Brittin once and Kent about four times between 2014 and 2019.
Communications between Kent and Todd had also broken down by 2016, and
the last time Kent saw Gale was in 2018. Because of their estrangement,
Kent had very little sense of where Gale was or how she was doing after
2018.
In 2019, Gale moved into an assisted living facility near Phoenix and
eventually needed memory care. According to Todd, her phone service was
terminated in 2020 because she was no longer able to use her cell phone.
Wade had moved to Hawaii by then “to get away from all the disputes.”
Gale passed away in October 2020. When she died, Todd sent a three-
word e-mail to his brothers and a small group of family friends stating: “Mom
passed today.” Brittin testified that when he saw Todd’s e-mail, he “wasn’t
sure what was happening.” But in the weeks that followed, Brittin e-mailed
Gale’s current and former probate attorneys noting that he had “received
notification” that Gale had passed away. He also requested that the probate
court proceed with probating Gale’s estate, which he said he would not have
done if he did not think Gale had died. At that time, it had been several
years since Brittin had seen Gale.

5
C. The March 2021 Phone Call
In the evening of March 16, 2021, Todd received a frantic call from
Wade saying that an officer with the SDPD had called him looking for Gale
and inquiring about her whereabouts. Wade conferenced Todd into the call
with the officer, who told them that he was outside Gale’s former home in
Point Loma because someone had reported her missing. Todd informed the
officer that Gale had passed away months prior, and at the officer’s request,
Todd drove to the Point Loma house to show him Gale’s death certificate.
The officer told Todd that the reporting parties—who Todd soon realized were
Brittin and Kent—said he and Wade lived at the Point Loma address with
Gale. After receiving an electronic copy of the death certificate and a copy of
the e-mail Todd sent his brothers announcing Gale’s death, the responding
officer did not investigate further, nor did he file a formal police report.
According to records from the original radio call, the dispatcher noted
that according to two of Gale’s sons, although Gale had purportedly died
about a year or so prior, they were still unaware of her whereabouts despite
contacting various agencies to look for her. This raised “a red flag” to the
dispatcher, who then sent an officer to conduct an initial evaluation. The
officer knew from the dispatch information that there was an ongoing dispute
among the brothers over estate funds and that there had been an e-mail
announcing Gale’s death. Kent was documented as the reporting party and
“Bruce”—presumably referring to Brittin—was listed as someone “assist[ing]”
Kent. Kent or Brittin provided a physical description of Gale to the
dispatcher and reported that Gale’s phone had been turned off.
Later that same night, Brittin e-mailed his brothers, Gale’s probate
attorneys, Todd’s attorney, and Kent’s attorney. The e-mail requested,
among other things, that someone “please reply with the date, location and

6
the surrounding circumstances of Gale’s death.” The message ended with:
“Time and response may be of the essence.”
D. Wade’s Sobriety, Relapse, and Death
Before receiving the March 2021 phone call from SDPD, Wade had been
sober for about 15 years after previously struggling with alcoholism. Brittin
and Kent both knew Wade was an alcoholic. Wade was a member of
Alcoholics Anonymous and made meetings a priority. His close friends
described him as being “very disciplined” and they never saw him consume
alcohol or marijuana, even though he frequently bought alcoholic drinks for
others in social settings and lived in homes where alcohol was easily
accessible. Wade was also “extremely cautious” about the risks of drunk
driving and he was adamant that none of his friends should drink and drive,
often serving as the designated driver. Todd and Wade’s friends had no
suspicion that Wade was drinking or trying to hide his drinking.
But the phone call from SDPD upset Wade and he was shocked that
Kent and Brittin would “keep doing this kind of thing to him.” Wade believed
that the police report had been “made up to hurt him.” Brittin’s e-mail that
same night also frustrated Wade further, and in the days that followed, Wade
was “spinning,” “flipping out,” “replaying the events in his head,” and trying
to understand why his brothers would persist in wounding him. Wade asked
Todd for a copy of Gale’s estate planning documents, which surprised Todd
given Wade’s past desire to avoid anything related to his parents’ estates.
Wade also told his friends how distressed he was that his brothers would call
the police to Gale’s home.
Wade was living alone at a friend’s house in Hawaii at the time.
Wade’s girlfriend, who lived in San Diego but spoke with Wade daily during
the week after the phone call, said he seemed “overly stressed and kind of not

7
himself.” He spoke often about the call but would then change the subject
and try to “be positive.”
The morning of March 23, 2021, a week after Wade got the phone call
from SDPD, Wade’s girlfriend said her communications with Wade were as
usual. But later that day in the late afternoon or evening, Wade crashed his
Vespa into a wall next to a straight roadway and died from his injuries. He
was not wearing a helmet, had a blood alcohol level almost three times the
legal limit, and had marijuana in his system. Wade’s friends, including Todd,
expressed surprise and shock that Wade would drive under the influence.
E. Expert Testimony
Dr. Martin Williams, a psychologist with experience in substance abuse
disorders, opined that Kent and Brittin’s phone call to the police is “precisely
what caused Wade to relapse.” Dr. Williams observed that Wade “had made
all these efforts to maintain a peaceful life” and that the phone call “put him
over the edge.” He opined that the stress of being implicated in the death of
his mother, whom he was very close to, was “beyond the kind of stress that
people are able to handle as recovering alcoholics[.]” In Dr. Williams’ view,
there was nothing else in the documentation he reviewed—which included
the complaint and cross-complaint, Gale’s death certificate, Wade’s death
certificate, tributes from Wade’s funeral, and background information
regarding the disputes over Gale and Leonard’s estates—that could have
contributed to his relapse.
According to Dr. Williams, he would expect a person who had relapsed
to commit crimes, “but specifically the crime of driving while intoxicated,
absolutely.” He opined it was foreseeable that someone who relapsed would
drive drunk, and he was not surprised to learn Wade had marijuana in his
system because “[i]f a person relapses in that fashion, all bets are off” and he

8
would not be surprised that a relapsing alcoholic consumed drugs. He also
believed it would be foreseeable to anybody who knew Wade’s drinking habits
that if he relapsed, he would probably return to those same habits.
F. Defendants’ Testimony
Brittin and Kent both testified that they had reached out to various
state and county agencies about Gale’s death before calling SDPD because
they needed a copy of her death certificate to take ownership of certain stock.
According to Brittin, when he contacted the police earlier in the day on
March 16, 2021, they told him Gale was listed as “not deceased” in their
records and he got a similar response when he contacted a social security
agency representative. That evening, Brittin initiated the 30-minute call to
SDPD and Kent was only conferenced into the call for the last ten minutes.
Brittin testified that neither he nor Kent told the police Gale was missing
during that phone call, although Kent was “not positive” at that time that
Gale had actually died.
Brittin and Kent both testified that they merely answered the
dispatcher’s questions and did not intend to harm Wade or Todd. When
asked whether he talked to the police because he was concerned about elder
abuse toward Gale, Kent said he had already relayed some concerns about
elder abuse to his lawyer during the dispute over Leonard’s estate. He added
that he had “always been concerned about [Gale’s] well-being” and prayed for
her every day although he had not spoken to her during the last two years of
her life.
G. Damages Evidence
The jury heard testimony and received documentary evidence
regarding the terms of Leonard’s and Gale’s respective trusts. It also
received an inventory of Gale’s trust assets as of October 2021 and an

9
accounting of Leonard’s 2014 trust assets through October 2023, purportedly
to show what Wade would have received from both trusts if he had lived.
Todd testified that because Wade had died, he would not share in the roughly
$8.7 million of assets from Gale’s trust. Gale’s and Leonard’s trust
documents both identified as beneficiaries their lawful issue “living at the
time of the proposed distribution.”
Todd presented evidence showing the costs he incurred for the
mortuary bill and plane tickets to and from Hawaii to make arrangements
after Wade’s death. He also testified regarding his close companionship with
Wade.
H. Trial Proceedings
Todd, individually and as Wade’s successor in interest, filed a
complaint against defendants in October 2021 alleging causes of action for
defamation, IIED, negligence per se, and wrongful death under Code of Civil
Procedure section 377.60. The complaint alleged that defendants’ actions
“were the legal cause of Wade’s tragic and untimely death” and that they
“concocted a plan to use the police to harass, intimidate, upset, and
ultimately disrupt their brothers’ lives.” The complaint also alleged that
defendants “knew or reasonably should have known that their planned
conduct was likely to cause Wade to relapse and begin abusing alcohol

again.” 2
Todd withdrew his defamation and negligence per se claims before trial
and proceeded on IIED, negligence, and wrongful death causes of action.

2 Todd’s counsel confirmed throughout the proceedings that he was only
asserting a wrongful death claim and not a survival claim. A wrongful death
claim (Code Civ. Proc., §§ 377.60–377.62) is brought on behalf of the heirs,
not the decedent. (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76–
78.) The elements of a wrongful death claim are a wrongful act or neglect,
10
During the jury trial, the court granted his request to amend his complaint

to conform to proof and add a conspiracy claim against defendants. 3
The court instructed the jury before closing arguments. Among other
things, the court instructed the jury on the essential elements of the IIED
claim using CACI No. 1600. That instruction provided that to prevail in his
IIED claim, Todd had to prove in relevant part that: (1) defendants’ conduct
was outrageous; (2) they intended to cause plaintiffs emotional distress or
acted with reckless disregard of the probability that plaintiffs would suffer
emotional distress; (3) plaintiffs suffered severe emotional distress; and
(4) defendants’ conduct was a substantial factor in causing plaintiffs severe
emotional distress.
The court also instructed the jury on CACI No. 430 (Causation:
Substantial Factor), which states that “[a] substantial factor in causing harm
is a factor that a reasonable person would consider to have contributed to the
harm. It must be more than a remote or trivial factor. It does not have to be
the only cause of the harm.”
Using a special verdict form agreed to by the parties, the jury found as
to the IIED claim that defendants’ conduct was outrageous and that they

resulting in death, and damages consisting of loss suffered by the heirs.
(Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Though pled as
separate claims, the negligence and IIED claims also supplied the wrongful
acts required for the wrongful death claim. Because the issues have not been
raised on appeal, we express no view on the propriety of asserting these
claims separately or bringing wrongful death claims both on behalf of Todd
individually and as successor in interest to Wade.
3 “Conspiracy is not a separate tort, but a form of vicarious liability by
which one defendant can be held liable for the acts of another.” (IIG Wireless,
Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.) The trial court here instructed on
conspiracy to commit intentional infliction of emotional distress or
negligence.
11
each intended to cause Wade and/or Todd emotional distress. The jury
further found that Wade, but not Todd, suffered severe emotional distress,
and that defendants’ conduct was a substantial factor in causing Wade’s
severe emotional distress.
On the negligence claim, the jury found that Brittin, Kent, and Wade
were each negligent, and that their negligence was a substantial factor in
causing harm to Wade. The jury assigned percentages of responsibility to
each party whose negligence caused harm to Wade as follows: 20 percent to
Brittin, 20 percent to Kent, and 60 percent to Wade.
On conspiracy, the jury found that defendants conspired to make false
statements to SDPD that required law enforcement intervention.
As for damages, the jury was not asked to differentiate between the
individual claims. For the “lost value of all inheritance Wade . . . would
have received if he had been alive” when Leonard’s and Gale’s trust assets
“are distributed,” the jury awarded Wade’s estate $1 million award for lost
inheritance from Leonard’s trust and $4 million for lost inheritance from

Gale’s trust. 4 The jury awarded Todd $5,000 in economic damages for
the cost of Wade’s funeral and related expenses. The jury also awarded
Todd $500,000 in noneconomic damages for past suffering, anguish, and
other emotional distress, along with $3.8 million for the loss of Wade’s
companionship. The jury found that defendants acted with malice,
oppression, or fraud, and in a separate special verdict form, the jury awarded
Todd as Wade’s successor in interest $80,000 against Brittin and $80,000

4 On appeal, defendants do not dispute that lost inheritance damages are
recoverable in a wrongful death action. We therefore have no occasion to
decide the issue.
12
against Kent in punitive damages. The court entered judgment on the jury’s

verdict and awarded costs of the suit to Todd. 5
I. Motions for JNOV and New Trial
Defendants moved for JNOV under Code of Civil Procedure section 629,
asserting that the verdicts were not supported by any substantial evidence
and the award of damages was “speculative and excessive.” Specifically, they
argued their actions were insufficiently “substantial or enduring” to sustain
a verdict for IIED, that the amount of Wade’s inheritance had not been
established at trial and was “presently unknown,” and that their call to the
police was a privileged communication under Civil Code section 47.
Defendants also moved for a new trial under Code of Civil Procedure
section 657 on the grounds that the court had wrongfully curtailed their
cross-examination of Todd and engaged in “repeated beratement and
perceived prejudice against defendants, in the presence of the jury.”
Defendants further argued their conduct could not sustain a verdict for
IIED and that the awarded damages were “excessive and speculative” for
the same reasons cited in their motion for JNOV. They also contended that
Todd’s counsel committed misconduct during closing argument.
The trial court denied the motions for JNOV and a new trial on all
grounds. In denying JNOV, the court explained: “The jury was well within
its rights to conclude that [defendants] told the SDPD they did not know
what had happened to their mother; that they did not know when or where
she had died; and that they believed their brothers (Todd and/or Wade) were

5 Although the jury apportioned fault for the negligence claim, principles
of comparative fault do not apply to reduce an intentional tortfeasor’s liability
based on the acts of others. (B.B. v. County of Los Angeles (2020) 10 Cal.5th
1, 24.) Because the jury found defendants liable for IIED, the final judgment
did not apportion the damages based on the jury’s comparative fault findings.
13
somehow complicit in her disappearance and passing. All of this was
completely untrue, and both defendants knew it. . . . The jury had every
right to conclude that the real purpose of the call was not to gain information,
but to cause problems for Wade and Todd in an effort to seek leverage in the
parties’ probate battles. This, coupled with defendants’ awareness of Wade’s
struggle with alcoholism and his retreat to Hawaii to avoid their campaign to
control the estates of their late parents, arguably constituted extreme and
outrageous conduct. . . . [¶] . . . [¶] The jury was entitled to believe that the
call to SDPD was for the purpose of manipulating the fight over money and
property earned, accumulated and saved by the parties’ parents. Sadly,
avarice overcame fraternal piety.” In denying the motion for new trial, the
court incorporated this discussion and determined that the evidence
supported the verdict “acting as the ‘thirteenth juror’ and independently
weighing the evidence.”
The trial court also rejected defendants’ argument that “Wade was the
‘unforeseeable plaintiff’ like poor, unlucky Helen in Palsgraf v. Long Island
Railroad (1928) 248 NY 339.” The court explained: “This argument fails for
three interrelated reasons: defendants were well aware of Wade’s struggles
with alcoholism; they knew of his retreat to Hawaii to escape his perception
they were misusing the probate litigation; and they knew their call to SDPD
on false pretenses would come to Wade’s attention.”
DISCUSSION
I
We begin by addressing defendants’ contention that the judgment must
be reversed because their conduct was not the proximate cause of Wade’s
death as a matter of law. As noted, defendants do not challenge any of the
jury’s liability findings, including that they engaged in outrageous conduct

14
intended to cause emotional distress and that their tortious conduct was a
substantial factor in causing harm to Wade. Instead, they argue that their
conduct was not the legal cause of Wade’s death as a matter of law because
his death was not within the scope of their liability for negligence or IIED.
We conclude that Wade’s drunk driving death was within the scope of
liability for wrongful death based on the IIED verdict. We therefore need not
consider whether Wade’s death was also within the more narrow scope of
liability for the negligence claim.
A. General Legal Principles
Proximate cause involves two elements. (Ferguson v. Lieff, Cabraser,
Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045.) The first is cause in
fact. A cause in fact is a necessary antecedent of an event. (Ibid.) “This is
sometimes referred to as ‘but-for’ causation.” (State Dept. of State Hospitals
v. Superior Court (2015) 61 Cal.4th 339, 352 (State Hospitals).) Where
concurrent independent causes contribute to an injury, courts apply a
substantial factor test for determining cause in fact. (Id. at p. 352, fn. 12.)
The substantial factor test subsumes traditional “but for” causation. (Ibid.)
The second element of proximate cause—sometimes referred to as
“legal cause”—focuses on public policy considerations. (State Hospitals,
supra, 61 Cal.4th at p. 353.) Because the purported factual causes of an
event may be traced back to the dawn of humanity, the law has imposed
additional limitations on liability other than simple causality. (Ibid.)
“These additional limitations are related not only to the degree of connection
between the conduct and the injury, but also with public policy.” (PPG
Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315–316.)
“Both Witkin and the Restatement of Torts frame this aspect of proximate

15
cause as ‘scope of liability.’ ” (Modisette v. Apple, Inc. (2018) 30 Cal.App.5th
136, 154 (Modisette).) We will use the same terminology.
Proximate cause is ordinarily a question of fact which cannot be
decided as a matter of law. (State Hospitals, supra, 61 Cal.4th at p. 353.) It
may nevertheless be resolved as a question of law if the facts are such that
the only reasonable conclusion is an absence of causation. (Ibid.)
The parties agree that the scope of liability element of proximate cause
presents an issue of law subject to de novo review because it is primarily
concerned with public policy. (See Modisette, supra, 30 Cal.App.5th at p. 154
[“The extent or scope of a defendant’s liability is a question of law”].) We will

therefore decide the issue de novo. 6 In doing so, we review the factual record
in the light most favorable to the judgment and accept the jury’s
unchallenged factual findings.
1. The Restatement
California courts generally follow the Restatement in analyzing
proximate cause and scope of liability. (See, e.g., State Hospitals, supra, 61
Cal.4th at p. 352, fn. 12; Shih v. Starbucks Corp. (2020) 53 Cal.App.5th 1063,
1068 (Shih).) For scope of liability questions, there are three different

6 We note, however, that the Restatement of Torts treats this as an issue
of fact on which the jury should be instructed, just like cause in fact. (See
Rest.3d Torts: Liability for Physical and Emotional Harm (Restatement or
Rest.), § 29, com. b, p. 494 [stating that when scope of liability is a genuine
issue, the jury should receive separate instructions on both factual cause and
scope of liability]; id., at com. q, p. 511 [“the court’s role is to instruct the jury
on the standard for scope of liability when reasonable minds can
differ . . . and it is the function of the jury to determine whether the harm is
within the defendant’s scope of liability”].)
16
Restatement provisions of potential relevance here: sections 29, 33, and 46,
which we discuss below.
Restatement section 29 (entitled “Limitations on Liability for Tortious
Conduct”) states that “[a]n actor’s liability is limited to those harms that
result from the risks that made the actor’s conduct tortious.” California
courts have applied this scope of risk standard in determining scope of
liability for cases involving negligence or products liability. Under this
standard, “[a] number of courts have found, as a matter of law, that a
defendant is not liable for an injury only distantly connected to defendant’s
conduct.” (Novak v. Continental Tire North America (2018) 22 Cal.App.5th
189, 198 [connection between defendants’ conduct and accident was too
attenuated to be within scope of risk]; see also Shih, 53 Cal.App.5th at
p. 1069 [alleged defect in Starbucks cup was not a legal cause of burns
plaintiff sustained applying scope of risk standard].)
Restatement section 29 is the appropriate scope of liability standard for
plaintiffs’ negligence claim. But the jury also found in their favor on the
IIED claim, and it was not asked to segregate the damages as between the
claims. We must therefore consider what the appropriate scope of liability
standard is for such an intentional tort.
Restatement section 33 (entitled “Scope of Liability for Intentional and
Reckless Tortfeasors”) sets forth a different scope of liability standard for
intentional torts. It states:
“(a) An actor who intentionally causes harm is subject to
liability for that harm even if it was unlikely to occur.

“(b) An actor who intentionally or recklessly causes harm is
subject to liability for a broader range of harms than the
harms for which that actor would be liable if only acting
negligently. In general, the important factors in
determining the scope of liability are the moral culpability

17
of the actor, as reflected in the reasons for and intent in
committing the tortious acts, the seriousness of harm
intended and threatened by those acts, and the degree to
which the actor’s conduct deviated from appropriate care.

“(c) Notwithstanding Subsections (a) and (b), an actor who
intentionally or recklessly causes harm is not subject to
liability for harm the risk of which was not increased by the
actor’s intentional or reckless conduct.”
Comments (a) and (e) to Restatement section 33 confirm that the scope
of liability for intentional and reckless tortfeasors is broader than the
Restatement section 29 risk standard that applies to negligent tortfeasors.
Comment (a) explains: “The inadequacy of the risk standard. The risk
standard provided in § 29 is inadequate to provide appropriate limits on the
scope of liability for intentional and reckless tortfeasors. . . . To the extent
that scope of liability is employed to prevent a defendant’s liability from being
out of proportion with the tortfeasor’s culpability, the scope of liability for
intentional and reckless tortfeasors should be broader than for negligent or
strictly liable tortfeasors.” Comment (e) states: “Expanded scope of liability
for unintended harms. Subsection (b) states the general proposition that the
scope of liability for intentional and reckless tortfeasors for unintended
harms is broader than the risk standard provided in § 29.”
Restatement sections 29 and 33 fall within a chapter specifically
governing scope of liability. (Rest., ch. 6.) A different chapter (Rest., ch. 8)
contains additional provisions for “stand-alone emotional harm” not caused
by any physical harm. (See Rest., ch. 8, Scope Note.) In this context, the
term “stand-alone” emotional harm “includes instances when both physical
and emotional harm occur but the emotional harm does not result from
physical harm.” (Ibid.) “What constitutes factual cause and scope of liability
are governed by Chapters 5 and 6, respectively,” whereas chapter 8

18
“addresses further limits on and rules about liability in cases involving
emotional harm not caused by physical harm.” (Ibid.)
Restatement section 46 (entitled “Intentional (or Reckless) Infliction of
Emotional Harm”) is one of the chapter 8 provisions. It provides that “[a]n
actor who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional harm to another is subject to liability for that
emotional harm and, if the emotional harm causes bodily harm, also for the
bodily harm.” Comment (g) to this section observes that “[t]he intentional-
infliction tort (unlike other intentional torts, which address specific types of
conduct or protect narrow interests) covers a wide range of behavior that is
bounded only by the ‘extreme and outrageous’ limitation.”
2. California Case Law on Scope of Liability for Intentional Torts
Like the Restatement, California courts have recognized that scope of
liability is broader for intentional torts than for negligence. (See, e.g., Brewer
v. Teano (1995) 40 Cal.App.4th 1024, 1036 (Brewer) [“ ‘The modern tendency
is to impose broader liability for consequences where the defendant was
guilty of an intentional wrong than where his conduct was merely
negligent.’ ”]; Helm v. K.O.G. Alarm Co. (1992) 4 Cal.App.4th 194, 202 (Helm)
[“the definition of ‘cause’ in cases involving intentional torts appears much
broader”]; Tate v. Canonica (1960) 180 Cal.App.2d 898, 904 (Tate) [“The law
has for a long time recognized a distinction between intentional and negligent
torts . . . and been more inclined to find that defendant’s conduct was the
legal cause of the harm complained of, where the tort is intentional.”].)
The California Supreme Court has explained that the defendant’s
moral blame is an important factor behind this distinction. (See Thing v. La
Chusa (1989) 48 Cal.3d 644, 652–653 (Thing) [“ ‘the increased liability
imposed on an intentional wrongdoer appears to reflect the psychological fact

19
that solicitude for the interests of the actor weighs less in the balance as his
moral guilt increases and the social utility of his conduct diminishes’ ”].)
Regarding IIED specifically, “California cases have been in accord with
[earlier versions of the Restatement] in allowing recovery where physical
injury resulted from intentionally subjecting the plaintiff to serious mental
distress.” (State Rubbish Collectors Asso. v. Siliznoff (1952) 38 Cal.2d 330,
337 (State Rubbish), citing Emden v. Vitz (1948) 88 Cal.App.2d 313, 315–319
[intentional infliction of emotional distress resulting in upset to glandular
condition, causing shortness of breath, heart pain, nervousness, headaches,
loss of sleep, and inability to carry on normal activities]; Bowden v. Spiegel,
Inc. (1950) 96 Cal.App.2d 793, 794–795 [intentional infliction of emotional
distress causing plaintiff to be “sick and ill” for an “indefinite time”];
Richardson v. Pridmore (1950) 97 Cal.App.2d 124, 128–130 [intentional
infliction of severe mental stress and physical strain resulting in
miscarriage].)
In State Rubbish, our Supreme Court described provisions of the first
Restatement of Torts as follows: “A defendant who intentionally subjected
another to mental distress without intending to cause bodily harm would
nevertheless be liable for resulting bodily harm if he should have foreseen
that the mental distress might cause such harm.” (State Rubbish, supra, 38
Cal.2d at pp. 336–337.) A few paragraphs later, however, the Supreme Court
quoted a 1947 amendment to the first Restatement which stated the rule
without any reference to foreseeability: “ ‘One who, without a privilege to do
so, intentionally causes severe emotional distress to another is liable (a) for
such emotional distress, and (b) for bodily harm resulting from it.’ ” (Id. at
p. 337.) The court made these observations only in deciding that a tort

20
plaintiff may recover for mental suffering without any accompanying physical
injury. (Id. at p. 338.)
In Tate, supra, 180 Cal.App.2d 898, the court relied on this line of
cases in deciding the scope of liability for IIED resulting in a suicide. (Id. at
pp. 904–913.) The wrongful death complaint there alleged that the
defendants made threats, statements, and accusations against the decedent
for the purpose of harassing, embarrassing, and humiliating him. As a
result, the decedent became physically and mentally disturbed and took his
own life. The complaint in Tate did not allege, however, that the defendants
acted for the purpose of causing the decedent to commit suicide. (Id. at
p. 900.)
The Court of Appeal nevertheless held that the plaintiffs could state a
wrongful death claim for intentional injury causing the suicide. (Tate, supra,
180 Cal.App.2d at pp. 904–913.) Recognizing a broader scope of liability for
intentional torts (id. at pp. 904, 906–907) and applying provisions of the first
Restatement of Torts (id. at pp. 904–909), the court concluded that the
defendants could be held liable for wrongful death “if (a) they intentionally
caused severe physical or mental distress to decedent, and (b) that physical or
mental distress was severe enough to be, in the judgment of the trier of fact,
a substantial factor in bringing about the suicide.” (Id. at p. 912.) The court
stated: “We can see no good reason of policy that would relieve the defendants
of liability [for IIED], if the suicide can be shown to have been in fact caused
by the type of injury that the defendants intended to inflict [citation], merely
because the decedent ‘knew what he was doing’ when he killed himself.” (Id.
at p. 908.) “[I]n a case where the defendant intended, by his conduct, to cause
serious mental distress or serious physical suffering, and does so, and such
mental distress is shown by the evidence to be ‘a substantial factor in

21
bringing about’ [citation] the suicide, a cause of action for wrongful death
results . . . .” (Id. at p. 909.)
The court also ruled that foreseeability of the suicide was not a factor
in determining scope of liability for IIED. (Tate, supra, 180 Cal.App.2d at
p. 908.) The court explained that “this element—foreseeability of the
particular injury—is a false quantity where the defendant intended to injure
by causing serious mental distress.” (Id. at p. 910.)
The Tate court rejected the defendants’ argument that suicide is always
an independent intervening cause breaking the chain of legal causation.
(Tate, supra, 180 Cal.App.2d at pp. 901–903.) The court concluded “that the
notion of independent intervening cause has no place in the law of intentional
torts, so long as there is a factual chain of causation.” (Id. at p. 907.)
In reaching this result, Tate relied heavily on the fact that suicide is
not a crime in California. (Tate, supra, 180 Cal.App.2d at pp. 901–903, 913.)
But this is not necessarily dispositive under current law. “The common law
rule that an intervening criminal act is, by its very nature, a superseding
cause has lost its universal application and its dogmatic rigidity. Like the
doctrine of contributory negligence, intervening criminal action is no longer a
total bar to recovery. Rather it is one consideration among many.” (Kane v.
Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 360.)
B. Analysis
With this background, we now turn to defendants’ argument that their
tortious conduct was not a legal cause of Wade’s death as a matter of law.
Defendants first argue that the policy considerations behind California’s
social host law (Civ. Code, § 1714, subd. (c)) preclude a finding of legal cause.
This statute provides that, with certain exceptions, “no social host who
furnishes alcoholic beverages to any person may be held legally accountable

22
for damages suffered by that person, or for injury to the person or property of,
or death of, any third person, resulting from the consumption of those
beverages.” (Ibid.)
The Legislature enacted this provision “in order to create a broad
statutory immunity against civil liability for social hosts who furnish
alcoholic beverages to any person.” (Bass v. Pratt (1986) 177 Cal.App.3d 129,
132.) In doing so, the Legislature declared that its intent was to “abrogate
the holdings” of three identified California Supreme Court cases “and to
reinstate the prior judicial interpretation of this section as it relates to
proximate cause for injuries incurred as a result of furnishing alcoholic
beverages to an intoxicated person, namely that the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from intoxication,
but rather the consumption of alcoholic beverages is the proximate cause of
injuries inflicted upon another by an intoxicated person.” (Civ. Code, § 1714,
subd. (b).)
Defendants read into this statute a sweeping legislative policy that the
consumption of alcoholic beverages is always the sole proximate cause of any
injuries resulting from intoxication. This overreads the legislative intent. By
its terms, the statute applies only to a “social host who furnishes alcoholic
beverages” (Civ. Code, § 1714, subd. (c)), and its stated intent was merely to
overrule prior caselaw “as it relate[d] to proximate cause for injuries incurred
as a result of furnishing beverages to an intoxicated person . . . .” (Id., subd.
(b), italics added.) The statute was not intended to say anything about
proximate cause for alcohol-related injuries incurred as a result of other
forms of wrongdoing. (See, e.g., Williams v. Saga Enterprises, Inc. (1990) 225
Cal.App.3d 142, 148–150 [Civ. Code, § 1714 did not bar claim by victim of
drunk driving accident against restaurant for breach of voluntary

23
undertaking not to return car keys to regular patron if he was under the
influence].) The statute does not reflect any policy limiting the scope of
liability for injuries incurred as a result of tortious conduct having nothing to
do with the furnishing of alcohol. We therefore conclude that this statute
does not supply a policy reason for limiting scope of liability here.
Defendants next argue that Wade’s death was too attenuated from
their phone call to the police to hold them responsible because it was not
within the scope of the risks that made their conduct tortious under
Restatement section 29. As we have explained, however, this scope of risk
standard is not the proper measure of legal cause for intentional torts, such
as plaintiffs’ claim for IIED. Although it would be the appropriate standard
for the negligence claim, liability for an intentional tort extends more
broadly. (Tate, supra, 180 Cal.App.2d at pp. 904, 906–907.) In response to
our request for supplemental briefing on this issue, the parties now agree
that Restatement sections 33 and 46 both apply to the IIED claim. We
therefore analyze the issue under these provisions.
Under Restatement section 33, the important factors for determining
scope of liability for an intentional tort are the moral culpability of the
defendants, as reflected in the reasons for and intent in committing the
tortious acts, the seriousness of harm intended and threatened by their acts,
and the degree to which their conduct deviated from appropriate care. (Rest.,
§ 33(b).) Because legal cause is ultimately a policy question, we also consider
any other policy reasons for or against limiting the scope of liability. We
address each of these factors in turn.
As for the reasons for and intent in committing the tortious acts, the
jury found that defendants intended to and did cause emotional distress to
Wade. There is substantial evidence that defendants knew Wade was a

24
recovering alcoholic who had moved to Hawaii to find peace and escape from
the family dysfunction because it took such a heavy toll on him. The jury
further concluded the defendants conspired to make a false report to the
police that required law enforcement intervention, which the jury could
reasonably infer was intended to prompt an investigation of Wade for elder
abuse of his own deceased mother. The jury also found defendants’ conduct
was outrageous, which the jury instructions defined to mean “beyond all
possible bounds of decency” and “intolerable in a civilized community.” This
extraordinarily high standard of misconduct “describes a very small slice of
human behavior.” (Rest., § 46, com. a, p. 136.) And the jury also found that
defendants acted with malice, oppression, or fraud warranting punitive
damages. None of these jury findings is contested in this appeal.
Such intentional, outrageous, and malicious conduct has high moral
culpability and no social utility that would weigh in favor of limiting the
scope of liability for the harm it was a substantial factor in causing. (See
Thing, supra, 48 Cal.3d at pp. 652–653 [recognizing that increased liability is
imposed on intentional wrongdoer because “ ‘the interests of the actor weighs
less in the balance as his moral guilt increases and the social utility of his
conduct diminishes’ ”].) Although the jury made no specific finding regarding
the underlying reasons why the defendants committed this conduct, it must
have rejected the credibility of their explanation that they were merely trying
to obtain a copy of Gale’s death certificate.
As found by the jury, this conduct also deviates substantially from
appropriate care. (Rest., § 33(b).) By definition, conduct that is “beyond all
possible bounds of decency” and “intolerable in a civilized community”
constitutes an extreme departure from appropriate care.

25
The harm intended and threatened by the defendants’ conduct was
serious as well. (Rest., § 33(b).) Again, the jury found that defendants
conspired to make a false police report and intended to cause emotional
distress to Wade. Subjecting someone to an unfounded law enforcement
inquiry over the “disappearance” of their own deceased mother threatens
serious harm. Although there was no evidence defendants intended to cause
Wade to relapse and drive drunk, they knew he was a recovering alcoholic,
which made a relapse and resulting harm more likely, including potentially
self-destructive behavior. Viewing the evidence in the light most favorable to
the judgment and the jury’s uncontested findings, the intended and
threatened harm were both serious.
Finally, we discern no other policy reason to insulate defendants from
liability for the harm their intentional conduct factually caused. Over the
years, tort law has evolved steadily towards greater protection of mental and
emotional health. (See, e.g., Downey v. City of Riverside (2024) 16 Cal.5th
539, 547–548 [tracing development of tort law in recognizing freedom from
emotional distress as an interest worthy of protection in its own right].) In
recent years, we have also gained a greater appreciation of the severe
emotional harm that can be caused by serious forms of bullying. Aside from
the social host statute, defendants identify no public policy that would
support cutting off liability for the harm factually caused by their intentional
infliction of emotional distress. We can identify none either. (Cf. Tate, supra,
180 Cal.App.2d at p. 908 [finding “no good reason of policy” that would relieve
defendants of liability for suicide committed by IIED victim].)
Accordingly, applying the Restatement section 33 analysis of moral
culpability, as reflected in the reasons for and intent in committing the
tortious acts, the seriousness of harm intended and threatened, and the

26
degree to which the conduct deviated from appropriate care, and factoring in
other considerations of public policy, we conclude that Wade’s relapse and
death were within the scope of liability for wrongful death based on the IIED
claim.
We reach the same result applying Restatement section 46 for
intentional or reckless infliction of emotional harm and resulting bodily
harm. The jury here found that the defendants intentionally caused Wade to
suffer emotional distress and necessarily must have concluded that this
severe emotional distress caused Wade’s relapse and subsequent drunk
driving death. Wade’s relapse and death were both forms of bodily harm
within the meaning of the Restatement. (See Rest., § 4 [defining “bodily
harm” to include “disease” and “death”]; In re Billings (1990) 50 Cal.3d 358,
367 [recognizing alcoholism as a disease]; Sundance v. Municipal Court
(1986) 42 Cal.3d 1101, 1114 [same].)
Under Restatement section 46, defendants may be held liable for the
emotional harm they intentionally inflicted against Wade and any bodily
harm factually caused by this emotional harm. (Rest., § 46.) Just as the
defendants in Tate could be held liable if their intentional infliction of
emotional distress was a substantial factor in causing the decedent’s suicide
(Tate, supra, 180 Cal.App.2d at pp. 908–912), the defendants’ conduct here
satisfies the requirements of section 46 because their intentional infliction of
emotional distress was a substantial factor in causing Wade’s relapse and
resulting death. Defendants concede that the record supports the jury’s
finding on the cause-in-fact question.
We also find it significant that the defendants knew Wade was a
recovering alcoholic. Even in cases involving only negligent conduct, where
the victim has a preexisting physical or mental condition that makes him

27
unusually susceptible and results in harm greater than might reasonably be
expected, the actor is nevertheless liable for all such harm. (Rest., § 31.)
This so-called “eggshell plaintiff” rule applies equally to claims for
intentional infliction of emotional distress. (Rest., § 46, com. j, p. 145.)
Indeed, “ ‘[t]he extreme and outrageous character of the conduct may arise
from the actor’s knowledge that the other is particularly susceptible to
emotional distress, by reason of some physical or mental condition or
peculiarity.’ ” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019)
39 Cal.App.5th 995, 1008, quoting Rest.2d Torts, § 46, com. f.) In Crouch, the
court applied this rule in affirming a judgment against a nonprofit religious
corporation for IIED committed by its director that resulted in the plaintiff’s
drinking and drug use, multiple pregnancies and abortions, self-harm, and a
suicide attempt. (Id. at pp. 1001–1002.) The court here also instructed the
jury on this eggshell plaintiff rule. (CACI No. 3928 [Unusually Susceptible
Plaintiff].) The jury could reasonably have concluded that Wade’s known
alcoholism was a preexisting condition that made him unusually susceptible
to harm from emotional distress. Accordingly, Wade’s relapse and death
were within the scope of defendants’ liability for IIED under Tate and the
Restatement.
We reject defendants’ remaining arguments to the contrary. First,
defendants repeatedly emphasize that Wade’s death occurred “an ocean
away” from their phone call to the police and “a week later.” This argument
misunderstands the meaning of “proximate” cause. Proximity in space or
time is not the test. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1050.) “An
actor’s tortious conduct need not be close in space or time to the plaintiff’s
harm to be a proximate cause.” (Rest., § 29, com. b, p. 494.)

28
Second, defendants rely on Restatement section 33(c), which states
that “an actor who intentionally or recklessly causes harm is not subject to
liability for harm the risk of which was not increased by the actor’s
intentional or reckless conduct.” Asserting that this provision “is only subtly
different from the ‘scope of risk’ standard in section 29,” defendants claim
their conduct did not increase the risk of Wade’s relapse, drunk driving, and
death. As we have explained, however, Restatement section 33 and its
comments make abundantly clear that this standard is materially broader
than the section 29 risk standard and was specifically designed to provide
expanded scope of liability for intentional torts resulting in unintended
harms. (Rest., § 33(b), coms. a & e, pp. 562–563, 564; see also Helm, supra, 4
Cal.App.4th at p. 202 [causation standard for intentional torts is “much
broader”].)
Moreover, the sole illustration provided for Restatement section 33(c)
confirms its inapplicability here. Illustration 3 states as follows: “After
leaving a shopping mall one night, Joe was confronted by Alex and Rob, two
young hoodlums who approached Joe with threatening gestures and words,
and who were carrying martial-arts weapons. Joe began to run from Alex
and Rob, but was struck by lightning, causing Joe serious burns. Alex and
Rob, despite their assault on Joe, are not liable for his harm because their
assault, while a factual cause of Joe’s burns, did not increase the risk of being
struck by lightning and suffering burns.” Wade’s emotional distress and
resulting relapse and drunk driving death were not comparable to being
struck by lightning while fleeing an assault.
Finally, defendants contend that Wade’s intervening conduct in driving
drunk and not wearing a helmet should cut off their liability as a matter of
policy. In our view, this amounts to an argument that either Wade’s

29
contributory negligence should bar any recovery for his own death or his
drunk driving should be treated as a superseding cause. Our Supreme Court
long ago abrogated the doctrine of contributory negligence in California (Li v.
Yellow Cab Co. (1975) 13 Cal.3d 804, 828–829), and even before that, it was
not applicable to intentional torts (Bartosh v. Banning (1967) 251 Cal.App.2d
378, 385; Tate, supra, 180 Cal.App.2d at pp. 907–908).
As for superseding cause, this is an affirmative defense that, if

applicable, should have been presented to the jury as a question of fact. 7
(Landeros v. Flood (1976) 17 Cal.3d 399, 411 [foreseeability of intervening act
is ordinarily a factual question for trier of fact in deciding superseding cause
defense].) Indeed, defendants requested a modified version of CACI No. 432
on superseding cause as an affirmative defense based on Wade’s drunk
driving, and they also argued superseding cause as a defense in their motion
for nonsuit at the close of plaintiffs’ case. The trial court refused their

7 A superseding cause is typically an intervening act committed by a
third party. (See CACI Nos. 432, 433.) In at least one case, however, our
Supreme Court has used the term in reference to the plaintiff’s own conduct.
(Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1016–1017
[plaintiff’s decision to practice shallow-water dive was not a superseding
cause as a matter of law]; but see Rest., § 34, com. c, p. 571 [“employing
superseding cause to bar a plaintiff’s recovery based on the plaintiff’s conduct
is difficult to reconcile with modern notions of comparative responsibility”
and “in most cases it constitutes . . . returning to a regime of contributory
negligence as a complete bar to recovery”].) There is also “a question as to
whether the intervening and superseding act doctrine is applicable to
intentional torts.” (Ash v. North American Title Co. (2014) 223 Cal.App.4th
1258, 1276; see Tate, supra, 180 Cal.App.2d at p. 907 [“the notion of
independent intervening cause has no place in the law of intentional torts, so
long as there is a factual chain of causation”]; but see Brewer, supra, 40
Cal.App.4th at p. 1036 [“the doctrine of superseding cause is less likely to cut
off the chain of events put in motion” by one who commits an intentional
tort].) We do not decide these issues because the superseding cause defense
has not been raised on appeal.
30
requested instruction as argumentative and defendants have not challenged
this ruling or argued superseding cause on appeal. Their superseding cause
defense has therefore been abandoned. We decline to resurrect this
abandoned defense in the form of a policy limitation on the scope of liability.
In sum, we conclude that Wade’s relapse and death were within the
scope of defendants’ liability for wrongful death based on the IIED claim. We
therefore need not consider whether Wade’s death was within the scope of
liability for the negligence claim. (See Leyva v. Crockett & Co., Inc. (2017) 7
Cal.App.5th 1105, 1108–1109 [judgment must be affirmed if it can be
sustained on any theory of law applicable to the case]; see also Crogan v.
Metz (1956) 47 Cal.2d 398, 403 [when plaintiff prevails on different theories
of relief in the trial court, appellate court may affirm judgment on any theory
supported by findings and evidence and may disregard other theories].)
II
Defendants next contend that the court abused its discretion when it
ended the defense’s cross-examination of Todd prematurely, which warrants
a new trial. We conclude that even assuming the court erred in that respect,
defendants have failed to demonstrate prejudice.
A. Additional Background
The defense called Todd as a witness and cross-examined him under

Evidence Code 776. 8 The court expressed frustration with defense counsel’s
line of questioning on a few occasions during the cross-examination. For
example, the court instructed counsel to move on to a different topic after a
series of questions regarding whether Todd issued a notification of trustee for
Gale’s trust. Later in the cross-examination, the court sustained a relevance
objection for questions relating to the disposition of Gale’s Point Loma house.

8 Undesignated statutory references are to the Evidence Code.
31
After an exchange in which defense counsel appeared to argue with Todd over
whether he “caused [his] brothers’ disinheritance,” the court warned counsel
that if he “argue[d] again before closing argument,” the court was “going to
end the examination.”
After it sustained two more objections on section 352 grounds, the
court followed through on its threat when defense counsel told Todd in front
of the jury that “[t]he call of March 16th had to do with contact with law
enforcement” and “had nothing to do with the estate planning.” The court
informed the defense, “That concludes your examination. I told you not to
argue anymore, and that’s what you just did. Thank you.” When the court
invited defense counsel “to follow-up” with questions for Todd after redirect,
defense counsel said he would “pass.”
In their motion for new trial, defendants asserted that the court had
wrongfully curtailed their cross-examination of Todd. After the court issued
a tentative ruling denying the motion and finding that defendants had failed
to show prejudice from Todd’s cross-examination being truncated, defendants
submitted a written proffer without leave of the court. In the proffer, they
asserted they had intended to impeach Todd with some of his deposition
testimony and argue that Todd himself caused Wade’s relapse by
exaggerating the significance of the phone call. Defendants also asserted
that they were unable to use Todd’s cross-examination to introduce medical
examiner, accident, and toxicology reports from Hawaii that established some
of the circumstances of Wade’s death. In its final order denying the motion
for new trial, the court declined to consider defendants’ proffer on the ground
that it was an “unauthorized tardy reply essentially seeking to backfill the
shortcomings of the moving papers identified in the tentative rulings.”

32
B. Analysis
“Control of cross-examination is within the discretion of the trial court,
and only a manifest abuse of discretion will warrant a reversal.” (People v.
Stuller (1970) 10 Cal.App.3d 582, 598.) Even in criminal cases, the court
“retains wide latitude to restrict repetitive, prejudicial, confusing, or
marginally relevant cross-examination.” (People v. Sanchez (2016) 63 Cal.4th
411, 450–451.) “ ‘Claims of evidentiary error under California law are
reviewed for prejudice applying the “miscarriage of justice” or “reasonably
probable” harmless error standard of People v. Watson (1956) 46 Cal.2d 818,
836, that is embodied in article VI, section 13 of the California Constitution.
Under the Watson harmless error standard, it is the burden of appellants to
show that it is reasonably probable that they would have received a more
favorable result at trial had the error not occurred.’ ” (Mountain View Police
Dept. v. Krepchin (2024) 106 Cal.App.5th 480, 506 (Mountain View); see also
People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103 [Watson standard of
prejudice applies to erroneous exclusion of only some defense evidence in a
criminal case, as opposed to exclusion of all evidence of a defense].)
We conclude that even assuming any error, defendants have
demonstrated no discernible prejudice from the curtailment of Todd’s cross-
examination. Defendants claim that they were unable to meaningfully
challenge Todd’s credibility. But before the trial court ended questioning,
Kent’s counsel had the opportunity to ask Todd about a wide range of topics
including his e-mail announcing Gale’s death, her death certificate, issues
related to his parents’ trusts, the family business, and Gale’s relationship
with defendants. Kent’s counsel also played clips of Todd’s deposition for
impeachment purposes. The only specific subject matter defendants now
argue they would have impeached Todd on is his testimony that Wade’s

33
estate would not receive an inheritance from Leonard’s trust because Wade
did not survive the distribution, which they contend was contrary to an order
issued by the probate court only weeks earlier. Yet defendants do not explain
why they could not have introduced the probate court order through another
witness or by way of a properly explained request for judicial notice.
In their belated offer of proof to the trial court, moreover, defendants
did not even mention this subject, which undercuts their current assertion
that they were intending to impeach Todd on it. Furthermore, Todd’s
testimony on this point was supported by language in Gale’s and Leonard’s
trust documents which identified as beneficiaries their lawful issue “living at
the time of the proposed distribution.” Defendants have not challenged on
appeal that the trusts require that beneficiaries survive the distribution of

assets, nor did defendants dispute that assumption in the trial court. 9 Kent
himself also testified that neither he nor Wade’s estate had actually received
any part of their inheritance from Leonard’s estate at the time of trial
because despite the probate court’s order, the case was “still in litigation.”
Our own review of defendants’ belated offer of proof, which the trial
court refused to consider, discloses that their impeachment evidence would
have been inadmissible or of limited significance given the evidence that was
already before the jury. The attached police and toxicology reports were
hearsay that could not have been admitted through Kent’s testimony. Those
reports also did not include salient information that was not otherwise
provided to the jury through witness and expert testimony. The deposition
excerpts mostly related to defendants’ theory that Todd exacerbated the
effect of the phone call on Wade, but defendants have made no prejudice

9 Because the issue has not been raised on appeal, we express no view as
to the proper interpretation of the trust documents.
34
argument regarding that theory on appeal. It is telling defendants
themselves do not rely on the offer of proof to argue that they suffered
prejudice. While they argue that no proffer was necessary to preserve the
issue on appeal, they do not explain how the specific documents in the offer of
proof help meet their burden of showing it was reasonably probable they
would have received a more favorable result at trial. (See Mountain View,
supra, 106 Cal.App.5th at p. 506.)
Considering all this, we cannot conclude that the prohibited cross-
examination would have produced a significantly different impression of
Todd’s credibility or the salient disputed facts in the case. Accordingly, we
find no reversible error in the trial court’s decision to curtail the defense’s
cross-examination of Todd.
III
Lastly, we consider defendants’ arguments that substantial evidence
does not support the jury’s damages awards. We reject these arguments as
well.
A. Additional Background
Along with his pretrial in limine motions, Kent submitted an “objection
to the introduction of any evidence in support of Plaintiff’s complaint” under
Code of Civil Procedure section 430.10 on the ground that the trust petitions
were “currently under the jurisdiction of the probate department where they
belong.” (Underlining omitted and italics added.) In support, Kent requested
that the court take judicial notice of (1) an August 2020 probate court order
regarding the distribution of Leonard’s trust and a September 2022 appellate
decision affirming that order; and (2) “the existence” of litigation in Gale’s
trust. The trial court denied Kent’s “objection” as an improper dispositive

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motion but took judicial notice of the probate court documents for the purpose
of ruling on it.
In another motion in limine, Kent initially sought to exclude from trial
all evidence related to the probate litigation over his parents’ trusts. He
argued such evidence was irrelevant and “a waste of time.” The court denied
the motion without prejudice. Mid-trial, however, Kent requested that the

court take judicial notice of certain probate court documents. 10 The court
denied the request. Accordingly, these documents were never presented to
the jury and cannot be considered in assessing a claim of insufficient evidence
to support the damages awards. (See Frank v. County of Los Angeles (2007)
149 Cal.App.4th 805, 828 (Frank) [exhibits “not admitted during the jury
trial . . . may not be considered in determining the sufficiency of the evidence
to support the jury’s verdict”].)
On appeal, defendants have not challenged the trial court’s ruling
denying this request for judicial notice. Instead, they have filed a separate
request in this court for judicial notice of five documents from the probate
litigation, including an October 2023 probate court order directing a
preliminary distribution of $50,000 each to the four beneficiaries of Leonard’s
trust. Defendants argue that these documents are relevant to their
sufficiency argument on the damages awards. But none of these documents
were introduced or admitted at trial and the jury heard no testimony about
them. Accordingly, we may not consider these documents in deciding the
sufficiency issue either. (See Frank, supra, 149 Cal.App.4th at p. 828.) We
deny the request for judicial notice because these documents were not

10 The appellate record does not include this request for judicial notice or
the attached documents, so we do not know which probate court documents
were the subject of the request.
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admitted into evidence at trial and are therefore irrelevant to the sufficiency
issue raised by defendants on appeal.
B. $1 Million Award for Lost Inheritance from Leonard’s Trust
Defendants are challenging two categories of lost inheritance damages:
the $1 million award to Wade’s estate for the lost inheritance from Leonard’s
trust and the $4 million award to Wade’s estate for the lost inheritance from
Gale’s trust. As to Leonard’s trust, defendants argue that because the
probate court ruled the estate would be divided among all four brothers, and
we affirmed that ruling on appeal after Wade had died, plaintiffs should have
been precluded from “proceed[ing] on a theory of damages that was wholly
inconsistent with the final rulings of the probate court.” Specifically,
defendants contend that the doctrine of collateral estoppel or issue preclusion
requires reversal of the $1 million award for Leonard’s trust.
We conclude that defendants forfeited this issue by failing to raise it
properly in the trial court. Kent referred to “res judicata” only in passing in
his pretrial “objection to the introduction of any evidence in support of
Plaintiff’s complaint” under Code of Civil Procedure section 430.10.
(Underlining omitted and italics added.) In that filing, Kent focused
primarily on the rule of exclusive concurrent jurisdiction. He did not discuss
the elements of res judicata or collateral estoppel, and did not explain how
either of those doctrines applied to the ongoing probate proceedings. He also
did not seek to preclude recovery of any specific category of damages. On the
contrary, the only relief he sought was that the “court should enter an
interlocutory judgment in favor of defendants on any cause of action arising
out of [Leonard]’s trust petition” and “an order staying all other issues in this
case until [Gale]’s pending trust petition has been fully adjudicated.”
Moreover, defendants did not assert issue preclusion as one of the grounds for

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challenging the damages awards in their post-trial motions for new trial or
JNOV. At no point in the proceedings below did defendants assert that the
doctrine of issue preclusion barred recovery of damages for lost inheritance
from Leonard’s estate.
In these circumstances, defendants have forfeited their issue preclusion
claim relating to the $1 million award for lost inheritance from Leonard’s
estate. (See People v. Harden (2022) 81 Cal.App.5th 45, 52 [failure to raise
issue preclusion in trial court forfeits contention on appeal]; Franklin Mint
Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332
[plaintiffs forfeited issue preclusion defense where, although they “made
references” to it, they “did not identify the elements” of issue preclusion and
did not “attempt to apply the facts of the case to those elements”]; Fireside
Bank Cases (2010) 187 Cal.App.4th 1120, 1127 [defendant who “simply
asserted” the plaintiff’s “claims were barred by res judicata and collateral
estoppel, without troubling to establish or even acknowledge the conditions
for operation of those doctrines,” could not rely on preclusive effect of prior
judgments].)
Setting aside the forfeited claim of issue preclusion, defendant’s
sufficiency argument as to the lost inheritance from Leonard’s trust is
premised entirely on probate documents that were not part of the evidence
admitted at trial or considered by the jury. Defendants make no sufficiency
argument independent of these documents. We cannot find insufficient
evidence to support the jury’s damages award based on facts or evidence not
presented to the jury.
C. $4 Million Award for Lost Inheritance from Gale’s Trust
Defendants also contend that the $4 million awarded to Wade’s estate
for the lost inheritance from Gale’s trust is not supported by substantial

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evidence. Specifically, they assert that “the amount Wade would have
received if he had survived distribution of Gale’s trust is entirely speculative”
because Kent in the probate court has challenged the amendment
disinheriting defendants as being “procured through undue influence.”
According to defendants, Gale’s trust was mired in litigation and Wade’s
estate would be entitled to $2 million at most if the disinheritance
amendment was found to be invalid.
We are not persuaded. Defendants presented no evidence or argument
to the jury that they were challenging their disinheritance in the ongoing
probate proceedings. They cite no such evidence in their briefs. The jury
heard only limited testimony about the fact that there was pending probate
litigation, and the orders and briefs from those proceedings were not
admitted into evidence. Like the sufficiency argument relating to Leonard’s
estate, the premise of this sufficiency argument is based on facts not
presented to the jury. Again, we cannot reverse a damages award for
insufficient evidence based on a theory that is itself not supported by any
evidence presented to the jury.
The jury did, however, see trust documents and hear testimony
supporting Todd’s theory that Wade would have received a $4 million
inheritance from Gale’s trust if he had survived the asset distribution. As
noted, defendants do not challenge on appeal that Gale’s trust has language
suggesting that its beneficiaries must survive the distribution of assets. The
trust document itself was admitted into evidence at trial, and defendants did
not contest this interpretation of its language either at trial or in this appeal.
And while defendants have raised arguments about what portion of Gale’s
trust Wade’s estate is entitled to, they do not dispute that the total value of
Gale’s estate is approximately $8 million, an amount the jury used to award

39
damages. Viewing this evidence in the light most favorable to the judgment,
and confining our review to the evidence actually admitted at trial, we
conclude that substantial evidence supports the jury’s award of $4 million to

Wade’s estate. 11 (See Kuhn v. Department of General Services (1994) 22
Cal.App.4th 1627, 1632–1633.)
D. $3.8 Million Award to Todd for Loss of Love and Companionship
Finally, defendants challenge the $3.8 million award to Todd as
compensation for the loss of Wade’s love and companionship. They do not
contend this award is excessive but argue it should be offset by the “financial
windfall” Todd will receive from Wade’s passing because Todd will inherit
greater portions of his parents’ estates.
We conclude this argument is forfeited because it was not raised in the
trial court. Defendants did not request any jury instruction on this offset
theory and did not argue it to the jury. In a civil case, each party must
request complete and comprehensive jury instructions on its theory of the
case. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 675.)
An appellant may not challenge the sufficiency of evidence based on a new
theory on which it did not request jury instructions (Pool v. City of Oakland
(1986) 42 Cal.3d 1051, 1065–1066) and which it did not argue to the jury
(Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 877–879).

11 In his briefing on appeal, Todd disclaims any intent to obtain a double
recovery of Wade’s inheritances in this case and again in the probate
proceedings. He asserts that if the judgment in this case is affirmed, “the
probate court has numerous tools at its disposal to take appropriate action to
ensure that those awards are credited or offset consistent with its orders of
final distribution for those trusts.” We are similarly confident that the
probate court has the ability to take appropriate action to prevent or correct
any double recovery.

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Moreover, neither of defendants’ post-trial motions even mentioned the
idea of a windfall or offset, but rather focused only on how the jury awards
were “speculative in nature.” Because defendants failed to raise their
windfall argument in the trial court, they have forfeited their challenge on
appeal. (JJD-HOV Elk Grove LLC v. Jo-Ann Stores, LLC (2024) 17 Cal.5th
256, 270.)
DISPOSITION
The judgment and the order denying defendants’ motion for JNOV are
affirmed. Plaintiffs shall recover their costs on appeal.

BUCHANAN, J.

WE CONCUR:

DO, Acting P. J.

CASTILLO, J.

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