Filed 4/30/20 Cavaretta v. Bixby CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TRACY M. CAVARETTA, as Special Administrator, etc.,

Petitioner and Respondent,

v.

SHEILA BIXBY, as Special Administrator, etc.,

Objector and Appellant.

B291023

(Los Angeles County

Super. Ct. No. YP011038)

APPEAL from an order of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed.

Law Offices of Najila K. Brent and Najila K. Brent for Objector and Appellant.

Burkley, Brandlin, Swatik & Keesey; Hansen Seto Keesey and Deborah C. Keesey for Petitioner and Respondent.

* * * * * * * * * *

This is the second appeal stemming from an order imposing increased liability for the wrongful taking of property belonging to the estate of Albert W. Duclos by his attorney, Kelly W. Bixby. (Prob. Code, § 859.) Mr. Duclos had retained Mr. Bixby to represent Mr. Duclos in his divorce. Funds belonging to Mr. Duclos were deposited into Mr. Bixby’s client trust account, but were never paid to Mr. Duclos.

Following Mr. Duclos’s death, his estate sought to recover the money during probate proceedings to administer his will. The estate obtained an order for the return of the funds under Probate Code section 850. Mr. Bixby filed for bankruptcy protection. After Mr. Bixby failed to provide an accounting or return the money, the estate obtained a subsequent order doubling the damages pursuant to section 859, from which Mr. Bixby appealed. (Cavaretta v. Bixby (Sept. 2, 2014, B243891) [nonpub. opn.].) The bankruptcy court had granted relief from the bankruptcy stay to Mr. Duclos’s estate. But the order granting relief was not signed and entered on the bankruptcy court’s docket until after the probate court held the hearing at which the court doubled the damages pursuant to section 859.

Mr. Bixby appealed the order on the Probate Code section 859 petition. We found the probate court lacked jurisdiction to conduct the section 859 hearing because the bankruptcy stay was still in effect at the time of the probate court hearing. (Cavaretta v. Bixby, supra, B243891.) On remand, after a new hearing, the probate court issued a well-reasoned ruling, citing all the evidence it relied upon in once again ordering double damages under section 859. Almost none of the evidence cited by the court was designated for inclusion in the record of this appeal.

Mr. Bixby had passed away while his first appeal was pending. His widow, Sheila Bixby, as special administrator of his estate, substituted for her husband to pursue the first appeal. She now appeals the second order for double damages. We find appellant has forfeited her claims of error by failing to comply with the basic rules of appellate procedure, and we affirm.

BACKGROUND

We draw the following facts from our earlier opinion. Most of the court filings referenced here were omitted from the record in this appeal, and are therefore outside the scope of our review.

Probate proceedings to administer the will of Mr. Duclos began in June 2010. A supplemental petition filed in July 2012 nominated Mr. Duclos’s sister, respondent Tracy M. Cavaretta, to administer the estate.

The estate filed a verified petition under Probate Code section 850, seeking to reclaim property of the probate estate held by Mr. Bixby. Mr. Bixby was in possession of $288,064.58, representing Mr. Duclos’s share of the proceeds from the sale of the marital home. Mr. Bixby was also in possession of an additional $29,735.95 in insurance proceeds owed to Mr. Duclos for damage to the marital home.

Mr. Bixby did not respond to letters demanding return of the money. He did not respond to the section 850 petition, and he did not appear at the hearing. On June 8, 2011, the court ordered Mr. Bixby to return $317,800.53 to the estate, and to submit an accounting for all client trust funds held for Mr. Duclos within 30 days of service of the order.

Some months later, the estate filed a “Petition for Order Increasing Liability of Kelly Bixby, Esq. and for Attorneys’ Fees [Probate Code § 859 and Code of Civil Procedure § 1218].” The verified petition stated that Mr. Bixby had not paid any of the $317,800.53 he had been previously ordered to pay, and he had not provided an accounting. While the section 859 petition was pending, Mr. Bixby filed for bankruptcy protection.

The hearing on the Probate Code section 859 petition was held on March 7, 2012. The estate’s bankruptcy attorney correctly advised the probate court that the bankruptcy court had granted the estate’s motion for relief from the automatic bankruptcy stay. After hearing from the parties, the probate court granted the petition for double damages under section 859. As it turned out, however, the order granting relief from the stay was not entered on the bankruptcy court’s docket until March 20, 2012, almost two weeks later.

The probate court order doubling the previous award against Mr. Bixby to $635,601.06 was not entered in the probate court’s minutes until July 11, 2012. The order entered that date found Mr. Bixby acted in “bad faith” and wrongfully took, “concealed or disposed of trust funds held for the benefit of . . . Duclos.” Mr. Bixby appealed, but passed away while his appeal was pending. (Cavaretta v. Bixby, supra, B243891.)

We reversed and remanded the case to the probate court, finding the court lacked jurisdiction to conduct the hearing on the Probate Code section 859 petition because the bankruptcy stay was still in force. Although the probate court order was not entered in the minutes until almost four months after the order of the bankruptcy court lifting the stay became effective, we concluded the probate court lacked jurisdiction to proceed with the hearing on March 7, 2012. (Cavaretta v. Bixby, supra, B243891.) Remittitur issued on December 1, 2014.

Following remittitur, the case was reassigned, as the previous judge had retired while the appeal was pending. On January 19, 2016, Mr. Duclos’s estate filed an amended verified petition, seeking a new order increasing Mr. Bixby’s liability pursuant to Probate Code section 859. The amended petition recited the procedural history of the case, including the bankruptcy and appeal, and asked for the same relief that had been granted in the earlier order. Appellant did not file a response to the petition, or seek leave of the court to do so. (Prob. Code, § 852.)

Appellant was often self-represented at hearings following remand, but at other times was represented by her counsel for the first appeal (and the instant appeal), Najila K. Brent. Following a number of continuances to facilitate mediation and settlement discussions, trial on the Probate Code section 859 petition was calendared for April 13, 2017. However, on March 28, 2017, Ms. Bixby and the estate stipulated to continue trial to September 5, 2017.

On August 25, 2017, the estate filed a separate trial statement, having received no response from appellant to its requests to prepare a joint statement. The trial statement listed 29 documents the estate intended to introduce into evidence in support of its claim for double damages pursuant to Probate Code section 859, including transcripts of the June 8, 2011, and March 7, 2012 hearings on the section 850 and 859 petitions, and the parties’ previous filings and verified petitions. The estate also filed a request for judicial notice of these documents. The record in this appeal does not include the vast majority of these documents.

Ms. Brent formally substituted back into the case on the day of trial, September 5, 2017. Although the substitution of attorney was not filed until September 5, 2017, it was executed by Ms. Brent and appellant on August 7, 2017. On September 5, appellant filed numerous documents with the court, including several volumes containing over 100 exhibits. Ms. Brent also filed a declaration, purporting to have complied with her obligations under Superior Court of Los Angeles County, Local Rules, rule 4.15(b)(1), (2) and (3), which requires parties to meet and confer regarding the preparation of a joint trial statement at least 30 days before trial, and file either a joint or separate trial statement not later than 10 calendar days before trial.

Neither Ms. Brent’s declaration nor the volumes of exhibits discussed the nature or purpose of the exhibits, or what appellant hoped to prove with them. That same day, appellant also filed a response to the estate’s amended Probate Code section 859 petition, which had been filed more than year earlier. Appellant also orally requested a trial continuance, so that she could file a dispositive motion for judgment on the pleadings.

The probate court found there was not good cause for a continuance, as Ms. Brent had been involved in the case for a very long time, was familiar with the case, and had been substituted in as counsel of record nearly a month before trial was set to commence. Ms. Brent was permitted to look over the estate’s trial binder over the lunch hour, with trial convening at 1:30 p.m.

After hearing extensive argument from the parties, the court conditionally accepted the request for judicial notice into evidence, subject to appellant’s written objections, which the court permitted appellant to file after the hearing. The court rejected appellant’s exhibits as untimely, and ordered that the matter would be deemed submitted on October 9, 2017, following limited briefing from the parties regarding the admissibility of the estate’s request for judicial notice.

Appellant subsequently filed objections to the request for judicial notice, and many other unauthorized filings, such as additional exhibits and points and authorities unrelated to the estate’s request for judicial notice.

On December 20, 2017, the probate court issued its decision following trial. The court reiterated its finding that appellant’s exhibits were filed late, and would not be considered by the court. Relying on the verified pleadings included in the request for judicial notice, as well as Mr. Bixby’s prior testimony, the court concluded that Mr. Bixby acted in bad faith, and awarded double damages pursuant to Probate Code section 859. Appellant timely appealed.

DISCUSSION

Appellant makes a number of claims of error on appeal, including that the amended petition filed after remand was time-barred; damages under Probate Code section 859 are prohibited by Code of Civil Procedure section 377.42, which bars recovery of punitive or exemplary damages against a decedent’s personal representative or successor in interest; res judicata bars the Probate Code section 859 petition; appellant was denied due process and a fair hearing on the section 859 petition; the court abused its discretion in denying appellant’s request for a trial continuance; there was no substantial evidence of bad faith; and other arguments. We decline to consider any of these arguments, finding appellant has forfeited them and has failed to demonstrate prejudicial error.

An appellant must demonstrate that, but for the trial court’s error, appellant would have received a more favorable outcome in the proceedings below. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) “[I]t is settled that: ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden on appeal to produce a record “ ‘which overcomes the presumption of validity favoring [the] judgment.’ ” (Webman v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592, 595.) “ ‘Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)

Appellant did not designate for inclusion in the appellate record most of the documents that were the subject of the estate’s request for judicial notice, on which the probate court relied in making its ruling on the Probate Code section 859 petition. Appellant did not include in the record any of the transcripts of the earlier hearings, nor the original section 850 and 859 petitions and responses. We cannot possibly assess appellant’s claims of error without knowing what happened in the probate court.

Moreover, appellant’s briefs contain scant citations to the record we do have, do not discuss the applicable standard of review for each of the claims of error, do not fairly discuss the evidence or proceedings below, and contain only a perfunctory analysis of the issues raised. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [we may disregard any claims when no appropriate reference to the record is furnished]; Cal. Rules of Court, rule 8.204(a)(2)(C), (a)(1)(B) [an appellant must recite in the opening brief all “significant facts” and contentions must be supported by argument and authority]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [an appellant must discuss all material facts, and not just facts favorable to their position]; see also People v. Stanley (1995) 10 Cal.4th 764, 793 [a brief must contain reasoned argument and legal authority to support its contentions or the court may treat the claims as forfeited].)

DISPOSITION

The order is affirmed. Respondent is awarded its costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. WILEY, J.