PEÑA, J.

Certified for Partial Publication.

Crabtree Schmidt, and Robert W. Crabtree, Modesto, for Defendant and Appellant.

Schofield & Associates, Louis F. Schofield, San Ramon; Freeman Firm, Thomas H. Keeling, Stockton, and Franklin J. Brummett for Plaintiff and Respondent.

PEÑA, J. This is the third appeal in a consolidated probate matter involving Stacey Carlson (Stacey) and Gabriel Ashlock (Gabriel), both of whom claimed entitlement to the estate of Gabriel's deceased father. We previously affirmed a judgment on the merits of a trust dispute, a will contest, and claims against Stacey for breach of fiduciary duty and financial abuse of a dependent adult. ( Estate of Ashlock (Mar. 14, 2019, F074969) 2019 WL 1219565 [nonpub. opn.] ( Ashlock I ).) We later affirmed an award of attorney fees. ( Estate of Ashlock (May 3, 2019, F076941) 2019 WL 1975342 [nonpub. opn.] ( Ashlock II ).)

Stacey now appeals from a judgment entered in a bifurcated proceeding on issues of damages and remedies. The monetary portion of the judgment exceeds $11 million. Stacey was found liable under Probate Code section 859, which imposes a penalty of "twice the value of the property recovered" in certain actions brought under section 850 et seq. (All undesignated statutory references are to the Probate Code.) Among other contentions, Stacey argues the trial court misinterpreted the quoted language and awarded "triple" damages rather than "double damages." We resolve the issue of statutory interpretation in the published part of the opinion. The remaining claims challenge the sufficiency of the evidence.

Multiple parcels of real property, collectively valued at $5,148,000, were recovered by the decedent's estate pursuant to section 850 et seq. The trial court found the properties had been misappropriated in bad faith and thus imposed a penalty of $10,296,000. We conclude this figure was correctly calculated under section 859.

Stacey was also surcharged approximately $838,777 for misappropriating cash and personal property. Based on a finding of bad faith, she was held liable under section 859 for an additional penalty of approximately $1,677,554. Stacey alleges the evidence is insufficient to support any of the surcharges.

We disagree with all but one of Stacey's contentions. She has identified the miscalculation of a surcharge for a series of financial transactions in March 2014, and the error impacts her total liability under section 859. The nature of the error precludes us from modifying the judgment ourselves. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

We take judicial notice of the records and opinions in Ashlock I and Ashlock II , and we incorporate by reference our earlier summaries of the factual and procedural background. In addition, Gabriel's unopposed request for judicial notice of the remittitur issued in Ashlock I is hereby granted. ( Evid. Code, §§ 452, subds. (a), (d), 459.) As previously explained, decedent Lonnie Lamont Ashlock (Lonnie) passed away in October 2013. Soon afterwards, Gabriel and Stacey became embroiled in litigation over Lonnie's estate.

Stacey petitioned to admit into probate a will signed by Lonnie in 2009. Gabriel opposed the petition on multiple grounds, including the fact Stacey had drafted the will and named herself the sole beneficiary. Gabriel also filed a petition challenging the validity of multiple trust instruments, which Stacey had drafted and executed on Lonnie's behalf in 2013. The will contest and trust petition were consolidated with other matters not relevant to this appeal.

The trust petition requested relief under section 850 et seq., including the return of 18 parcels of real property to Lonnie's estate. One of those properties, the "Snelling Ranch," contained approximately 190 acres of income-producing almond trees. The petition alleged Stacey's various actions constituted "[w]rongful [t]aking" within the meaning of section 859 and claimed the petitioner, Gabriel, was "entitled to ‘twice the value of the property recovered' in addition to any other remedies available in law."

A 53-day bench trial was conducted between November 2014 and February 2016. The final 13 days of trial were devoted to accounting issues. Stacey was ordered to account for all actions taken under her power of attorney, which Lonnie had granted to her in 2005. She was also ordered to account for "all activities/transactions taken pursuant to the ‘partnerships’ " she had allegedly entered into with Lonnie in 2009, namely, "Little Hills Ranch" and "Investwest Properties." The so-called "accounting phase" included expert witness testimony by certified public accountants.

On October 25, 2016, the trial court entered its "Interim Judgment" on the will contest and trust petition, which incorporated by reference a lengthy statement of decision. Lonnie was found to have been suffering from dementia as of "approximately the middle of 2008," and, from "that point onward," to have "lacked capacity to enter contracts and sign testamentary documents." Accordingly, and for independent reasons under former section 21350, the 2009 will was ruled invalid.

Relevant to this appeal, the Ashlock I judgment included findings that Stacey had forged documents purporting to show the creation, in 2009, of the Little Hills Ranch and Investwest Properties partnerships. The alleged partnerships were found to have never existed. Moreover, Stacey was found to have committed "fraud in the setting up of the ‘partnerships.’ "

The validity of the partnerships was an important issue in relation to the claims under section 850 et seq. Stacey had used her power of attorney to transfer title to most of Lonnie's real estate into the name of Investwest Properties. She then deeded Lonnie's properties into the 2013 trusts. The "sham" partnerships, which is how the trial court described them, added a layer of protection against any legal challenges to Stacey's taking of the real estate portfolio and other property. During trial, she conceded the trusts were invalid but argued 14 of the 18 properties were partnership assets and did not belong to the estate. One of the other four properties was the Snelling Ranch, which Stacey similarly alleged was "subject to the effects of the partnership with [her]." She thus relied on the partnership defense to justify the comingling of income from the Snelling Ranch with money in her own bank account. As part of the Ashlock I judgment, the trial court imposed a constructive trust on all properties that had been transferred into the invalidated trusts. It also surcharged Stacey a total of $365,152.92 for the use of estate funds to pay for her legal expenses and the expenses of third parties. The trial court reserved jurisdiction to resolve additional issues, including the amount of "damages" to which Gabriel was entitled under section 859 and other statutes.

In December 2016, Stacey filed her notice of appeal in Ashlock I . While the appeal was pending, the parties continued to litigate other matters in the consolidated action. It appears the damages and remedies phase consisted of briefing and written objections, with the parties basing their arguments on evidence presented during the initial 53 days of trial.

On March 19, 2018, the trial court issued its "Second Statement of Decision Regarding Issues of Accounting and Damages." (Some capitalization omitted.) The parties subsequently filed objections thereto. On July 13, 2018, the trial court issued two minute orders. The minute orders contained rulings on the objections and indicated the statement of decision would be modified accordingly. On the same date, the trial court issued its "Interim Judgment 2 on Second Amended Statement of Decision" (the judgment), i.e., the judgment from which the current appeal is taken.

Although Gabriel had argued for surcharges in excess of $3.8 million, the trial court denied most of his claims. As detailed in our Discussion, post , it imposed five surcharges against Stacey totaling $473,624.20. That amount was added to the surcharges of $365,152.92 in Ashlock I to determine the penalty under section 859, which was calculated to be $1,677,554.20. Gabriel accurately notes the trial court's calculation was off by four cents ($365,152.92 + $473,624.20 = $838,777.12. $838,777.12 × 2 = $1,677,554.24). The penalty was increased by $10,296,000, which represented twice the value of the 18 parcels of real estate. Therefore, Stacey's total liability under section 859 was determined to be $11,973,554.20.

DISCUSSION

I.-IV. V. Liability Under Section 859

A. Statutory Interpretation

Section 850 et seq. "provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person." ( Estate of Young (2008) 160 Cal.App.4th 62, 75, 72 Cal.Rptr.3d 520.) Section 850 allows specified persons to file a petition to obtain such a determination. (Id. , subd. (a).) Sections 851 through 855 provide most of the procedural rules.

If a petitioner establishes the right to property held by another party, the petitioner may recover the property under section 856. The statute provides: "[I]f the court is satisfied that a conveyance, transfer, or other order should be made, the court shall make an order authorizing and directing the personal representative or other fiduciary, or the person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief." An order granting relief under section 856 confers "the right to the possession of the property, and the right to hold the property, according to the terms of the order as if the property had been conveyed or transferred in accordance with the terms of the order." (§ 857, subd. (b).)

" ‘Section 856 clearly and unambiguously grants the probate court the power not only to order a conveyance or transfer to the person entitled to the property in question, but also to grant other appropriate relief. ’ " ( Estate of Kraus (2010) 184 Cal.App.4th 103, 113–114, 108 Cal.Rptr.3d 760.) A petitioner may recover property under section 856 and seek additional relief under section 859. ( Estate of Young, supra , 160 Cal.App.4th at p. 89, 72 Cal.Rptr.3d 520.) Section 859 states, in relevant part:

"If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of [the subject] property..., the person shall be liable for twice the value of the property recovered by an action under this part.... The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part." (Ibid. )

Stacey claims the trial court misconstrued the phrase "twice the value of the property recovered" as used in section 859. According to her, this language establishes the maximum amount of recoverable "damages" under section 850 et seq. Put differently, she argues a petitioner cannot recover misappropriated property under section 856 and also be awarded twice the value of the recovered property under section 859. We apply de novo review to this issue of statutory interpretation. ( John v. Superior Court (2016) 63 Cal.4th 91, 95, 201 Cal.Rptr.3d 459, 369 P.3d 238.)

"Our task is to discern the Legislature's intent. The statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context." ( Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190, 48 Cal.Rptr.3d 108, 141 P.3d 225.) If the words are clear and unambiguous, their plain meaning governs. ( Ibid. ; accord, Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103, 56 Cal.Rptr.3d 880, 155 P.3d 284.) "[W]e have no power to rewrite the statute to make it conform to a presumed intention that is not expressed." ( County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446, 75 Cal.Rptr.2d 738, 956 P.2d 1191.)

The following hypothetical scenario illustrates how section 859 operates under the plain language of the statute. Assume a petitioner's action under section 850 et seq. alleges the misappropriation of a diamond ring valued at $10,000. The probate court finds the petitioner is entitled to the ring and, pursuant to section 856, orders that it be returned. The petitioner is then deemed to have "recovered" the property for purposes of section 859—even if the actual conveyance has yet to occur. (See § 857, subd. (b).) If the petitioner can show the opposing party acted in bad faith, the probate court must impose a penalty under section 859 because the statute says "the person shall be liable for twice the value of the property recovered." (Ibid. ) Consequently, the opposing party must return the ring and pay $20,000.

Section 859 also applies to real property. (See, e.g., Estate of Young, supra , 160 Cal.App.4th at p. 92, 72 Cal.Rptr.3d 520.) Suppose a petitioner seeks to recover title to residential real estate valued at $100,000. If he prevails, the trial court will order the necessary reconveyance of title. If the opposing party acted in bad faith when transferring title to herself, she will be liable for $200,000. That is what happened in this case, but the 18 properties recovered by the estate were collectively valued at $5,148,000. Stacey was held liable for $10,296,000, i.e., "twice the value of the property recovered." ( § 859.)

The statutory language is no less clear when the wrongfully taken property is cash, but confusion may arise due to the tendency of practitioners and courts to informally refer to section 859 as a "double damages" provision. (E.g., Hill v. Superior Court (2016) 244 Cal.App.4th 1281, 1283–1284, 198 Cal.Rptr.3d 831.) We used the phrase ourselves in Ashlock I . However, the word "damages" does not appear anywhere in the statutory scheme. (§§ 850–859.)

Changing our first hypothetical scenario, assume that instead of a diamond ring, the petitioner seeks to recover $10,000. The money was withdrawn from the decedent's bank account by the opposing party. The probate court determines the decedent's estate is entitled to the $10,000 and, pursuant to section 856, orders the opposing party to return it. The opposing party is additionally found to have acted in bad faith. Pursuant to section 859, the opposing party "shall be liable for twice the value of the property recovered," i.e., $20,000. When the judgment is entered, it reflects a total monetary obligation of $30,000, but $10,000 of that sum is the "recovered" amount. The obligation to return the money arises under section 856; the liability under section 859 is a punishment for culpable misconduct.

Stacey disagrees with the above analysis. Her briefing states:

"By way of a hypothetical, and using small numbers for ease of calculation[,] suppose Stacey took $5 from the estate. Under [ section] 859, the damage is the $5 taken, which is then doubled, for a total judgment of $10. Stacey would owe the estate twice what she took i.e., $10. This is [the] most she would owe. [¶] ... Here, what the trial court did, was essentially enter a judgment for $15, because it gave the estate the property and also twice the value of the property."

Stacey relies on Conservatorship of Ribal (2019) 31 Cal.App.5th 519, 243 Cal.Rptr.3d 177 ( Ribal ), which does support her argument. In that case, Division Three of the Fourth District Court of Appeal interpreted section 859 as setting a limit on a wrongdoer's monetary responsibility under section 850 et seq. However, Ribal 's analysis does not follow the plain meaning rule and conflicts with the holding of Estate of Kraus, supra , 184 Cal.App.4th 103, 108 Cal.Rptr.3d 760 ( Kraus ). Despite citing and quoting Kraus , the Ribal opinion does not acknowledge the conflict. ( Ribal , at p. 525, 243 Cal.Rptr.3d 177.)

In Ribal , the petitioner in an action brought under section 850 et seq. obtained a judgment against Nguyen. ( Ribal, supra , 31 Cal.App.5th at pp. 521–522, 243 Cal.Rptr.3d 177.) The judgment included a separate award for personal injury damages not relevant to our discussion. Part of the appeal dealt with ambiguous language in the judgment. Although couched in different terms, the opinion indicates the judgment provided for a net recovery of $79,991 under section 856. ( Ribal , at pp. 522–524, 243 Cal.Rptr.3d 177.) Nguyen was also found liable under section 859, and twice the value of the property recovered equaled $159,982.

The Ribal petitioner calculated " ‘the principal amount owing on the Judgment by separately including "Compensatory Damages" of $79,991 ... and "Double Damages" of $159,982 .... By contrast, Nguyen argued the "Double Damages" [...] subsumed the "Compensatory Damages." ’ " ( Ribal, supra , 31 Cal.App.5th at p. 523, 243 Cal.Rptr.3d 177, ellipses in original except where bracketed.) Adopting similar terminology, the appellate panel explained, "The stated amount of actual damages awarded in the judgment is $79,991. Double that amount is $159,982. Treble that amount is $239,973—which, when added to the [personal injury damages], reflects [the sum the petitioner] argues is the correct amount of the judgment." ( Id. at p. 524, 243 Cal.Rptr.3d 177.) The Ribal court accepted Nguyen's interpretation of section 859, i.e., the argument that his obligation to return the $79,991 merged with his liability for "twice the value of the property recovered." The opinion concludes:

"If the Legislature had intended damages to be tripled, it would have written something akin to ‘the person shall be liable for [three times ] the value of the property recovered by an action under this part.’ ( Prob. Code, § 859.) In our experience, the Legislature knows how to distinguish between double damages and treble damages and has provided for each in numerous contexts." ( Ribal, supra , 31 Cal.App.5th at p. 525, 243 Cal.Rptr.3d 177, brackets in original.)

Division Five of the Second District Court of Appeal has interpreted the statute differently. In its view, "Section 850 et seq. does not contemplate an award of damages to anyone." ( Kraus, supra , 184 Cal.App.4th at p. 117, 108 Cal.Rptr.3d 760.) "The statutory scheme's purpose is to effect a conveyance or transfer of property belonging to a decedent or a trust or another person under specified circumstances, to grant any appropriate relief to carry out the decedent's intent, and to prevent looting of decedent's estates." ( Ibid. ) When a probate court orders relief under sections 856 and 859, it is requiring the person in possession of the subject property to return it and the person who is culpable for misappropriating it to pay a statutory penalty. ( Id. at p. 118, 108 Cal.Rptr.3d 760.)

In Kraus , appellant David Kraus had withdrawn $197,402 from his dying sister's bank accounts under the ostensible authority of a void power of attorney. ( Kraus, supra , 184 Cal.App.4th at pp. 106–107, 108 Cal.Rptr.3d 760.) The beneficiaries of his sister's will and trust petitioned for relief under section 850 et seq. The probate court found David had acted in bad faith and ordered him "to return $197,402 to a court-appointed representative of the estate... and to pay statutory double damages of $394,804," which represented twice the value of the property recovered in the action. ( Kraus , at p. 106, 108 Cal.Rptr.3d 760.) The judgment was affirmed on appeal. Although it disapproved of the terminology, the appellate court concluded the result was permissible even if the $197,402 was construed as "compensatory damages." ( Id. at p. 118, 108 Cal.Rptr.3d 760.) Due to the finding of bad faith, David was separately liable under section 859 for the "statutory penalty" of $394,804. ( Kraus , at p. 118, 108 Cal.Rptr.3d 760.)

Several considerations lead us to conclude the proper interpretation of section 859 is reflected in Kraus and not Ribal. Unlike section 856, section 859 is punitive in nature. ( Estate of Young, supra , 160 Cal.App.4th at p. 88, 72 Cal.Rptr.3d 520.) Section 859 does not impose punitive damages, but it is designed to punish and deter specific misconduct. ( Estate of Young , at p. 88, 72 Cal.Rptr.3d 520 ; accord, Kerley v. Weber (2018) 27 Cal.App.5th 1187, 1198, 238 Cal.Rptr.3d 781, citing ibid. ["the purpose of section 859 [is] to punish and deter the wrongdoer"]; Hill v. Superior Court, supra , 244 Cal.App.4th at p. 1287, 198 Cal.Rptr.3d 831 [concluding § 859 imposes liability for "statutory damages awarded as a penalty," which differ from punitive damages].) There is nothing punitive about requiring a thief to return stolen property to its rightful owner, which undermines Ribal 's conclusion that a penalty imposed under section 859 subsumes the wrongdoer's obligation under section 856 to return the misappropriated property. ( Ribal, supra , 31 Cal.App.5th at p. 525, 243 Cal.Rptr.3d 177 ; cf. Kerley v. Weber, supra , 27 Cal.App.5th at p. 1198, 238 Cal.Rptr.3d 781 [repayment of stolen funds pursuant to a criminal restitution order does not reduce a wrongdoer's liability under § 859 for the same misconduct].) Furthermore, the statutory language treats the duty to return the property as a separate and antecedent obligation: "the person shall be liable for twice the value of the property recovered by an action under this part." (Italics added.) Even cases construing the statute as a damages provision recognize that a recovery order under section 856 is a prerequisite for additional relief under section 859. (E.g., Estate of Young, supra , 160 Cal.App.4th at pp. 88–89, 72 Cal.Rptr.3d 520.) If the Legislature had intended to merge the restorative obligation with the punitive penalty, inclusion of the word "recovered" would serve no purpose. "A construction making some words surplusage is to be avoided." ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Applying the Ribal holding to our first hypothetical scenario illustrates its deviation from the plain language of section 859. Upon establishing ownership of the diamond ring, the petitioner is entitled to recover the property under section 856. The opposing party must return it regardless of whether the underlying circumstances involved bad faith or an innocent misunderstanding. The ring is worth $10,000, but the opposing party suffers no punishment or detriment by returning it to its rightful owner. However, if the person is found to have acted in bad faith, she is "liable for twice the value of the property recovered." ( § 859.) Twice the value of the property is $20,000, but Ribal holds the wrongdoer need only pay $10,000. ( Ribal, supra , 31 Cal.App.5th at p. 525, 243 Cal.Rptr.3d 177.) Under such a construction, the penalty is only the value of the property recovered, not "twice the value" as the statute demands.

In this case, the estate recovered cash, personal property, and real property. Stacey was found to have wrongfully taken the property in bad faith. The trial court specifically relied on Kraus to calculate her liability under section 859. We agree with the analysis of Kraus and thus reject Stacey's statutory interpretation claim.

B. Sufficiency of the Evidence VI. Corrections to the Judgment

DISPOSITION

The surcharge of $27,624.20 is affirmed as to the amount of $16,608.85 but reversed as to the remaining balance of $11,015.35, subject to recalculation by the trial court. The penalty of $1,677,554.20, which was imposed pursuant to section 859 in relation to the surcharges, is affirmed as to the amount of $1,655,523.50 but reversed as to the remaining balance of $22,030.70 ($11,015.35 × 2), subject to recalculation by the trial court. In all other respects, the judgment is affirmed.

The matter is remanded for further proceedings consistent with this opinion. In the interests of justice, the parties shall bear their own costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(5).)

WE CONCUR:

DETJEN, Acting P.J.

SMITH, J.