Filed 6/10/20 Azar v. Ludwig CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DARLENE AZAR,

Plaintiff and Respondent,

v.

DAWNA LUDWIG,

Defendant and Appellant.

G057920

(Super. Ct. No. 30-2018-00975264)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Ronald L.

Bauer, Judge. Affirmed.

James G. LeBloch for Defendant and Appellant.

Miller Miller Gerber, Jonathan L. Gerber and Nicole M. Peterson for Plaintiff and Respondent.

 

INTRODUCTION

Dawna Ludwig appeals from an order disqualifying her attorney, James LeBloch, from representing her in a suit brought against her by the conservator of her husband, Edward Raymond. The state of the record requires that we affirm the order.

FACTS

This case grows out of conservatorship proceedings that form the basis of our companion opinion issued today. (Conservatorship of Raymond (June 10, 2020, G056805) [nonpub. opn.].) Briefly, Raymond suffered a severe physical and mental breakdown in early January 2016 such that he needed a conservator. His daughter, Darlene Azar, and his second wife, Ludwig, vied for the post. The court chose Azar, holding that Ludwig was not likely to act in Raymond’s best interests. Raymond has been in a nursing home since at least 2016.

Attorney LeBloch first became involved in the case after Raymond and Ludwig sought him out in December 2015 to prepare a will. After Raymond’s breakdown in 2016, LeBloch kept trying to insert himself in the conservatorship proceedings, claiming to represent Raymond. The probate court appointed the public defender to represent Raymond, and LeBloch, ostensibly representing Ludwig, appealed on his own behalf as well as Ludwig’s. The conservatorship appeal has been resolved today, in the companion opinion.

In February 2018, Azar and others filed a civil complaint for elder abuse and fraud against Ludwig. As Raymond’s temporary conservator, Azar included him and his estate as plaintiffs. The complaint alleged that Ludwig had taken Raymond’s property and had fraudulently induced him to marry her.

Evidently LeBloch tried to insert himself into the civil action, this time representing Ludwig. Azar moved to “exclude” him, presumably meaning to disqualify him from representing Ludwig. The motion was granted, and this appeal followed.

DISCUSSION

I. Motion to Strike and for Sanctions

Azar has moved to strike most of Ludwig’s appendix in this appeal on the grounds that including most of the documents therein violates the California Rules of Court. She is correct. The violations fall into two main categories. First, some of the documents did not come from the superior court file. (See Cal. Rules of Court, rule 8.124(g).) Second, Ludwig has not complied with the requirements of California Rules of Court, rule 8.124(b)(2)(A) and (B), which governs incorporation by reference of documents in a pending appeal.

Ludwig refers to documents in the appellant’s appendix as “exhibits.” The “exhibits” that are not part of the superior court file in this case are exhibit 1 (a grant deed from 2000), exhibits 5 and 6 (retainer agreements), exhibit 8 (a declaration), exhibit 10 (reporter’s transcript of a hearing), exhibits 11 through 13 (emails), and exhibit 16 (LeBloch declaration). The “exhibits” that were not properly incorporated by reference are exhibit 2 (marriage certificate), exhibits 3 and 4, which were stricken from the record in the conservatorship appeal pursuant to an order dated February 6, 2020, and exhibit 7 (a will). All of these documents are stricken from the appellant’s appendix. (See The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404.) The only remaining documents are exhibit 9, the complaint in this action, exhibit 14, the minute order disqualifying LeBloch, and exhibit 15, the notice of appeal.

In addition to moving to strike the documents in Ludwig’s appendix, Azar has also requested an award of monetary sanctions. We deny the request. Azar’s respondent’s appendix also contains documents that violate the California Rules of Court.

Azar also refers to the documents included in her appendix as “exhibits.” The following “exhibits” are improperly included in the respondent’s appendix: exhibit 3 (the statement of decision from the first appeal); exhibits 4 through 6 (deposition transcripts and an errata sheet), and exhibit 7 (reporter’s transcript). (See Cal. Rules of Court, rule 8.124(b)(2)(A) and (B), (b)(3)(C); (g).) We have disregarded statements made in the brief that lack support in the record and material that should not have been included. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1440, fn. 2; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.) Although Azar’s rule violations are not as plentiful as Ludwig’s, we do not believe the pot can claim a reward for calling the kettle black.

II. Attorney Disqualification

The pruning of Ludwig’s appendix to three documents means that we have very little upon which to base our review of the disqualification order, which we review for abuse of discretion. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819.) The disqualification order itself merely states, “Court and counsel discussed plaintiff’s [i.e., Azar’s] motion for exclude attorney James G. LeBloch is granted [sic].” The order also gave Ludwig time to obtain other counsel.

We do not have a copy of the disqualification motion, so we do not know what the grounds were. In fact, the record does not inform us as to whether the motion was written or oral because Ludwig’s appendix does not include a copy of the register of actions, as required by California Rules of Court, rule (b)(1)(A).) Moreover, Ludwig’s appendix does not include a notice to prepare a reporter’s transcript (see Cal. Rules of Court, rules 8.124(b)(1)(A) & 8.122(b)(1)(E)), so we assume Ludwig did not request a transcript of the hearing.

The lack of a properly designated reporter’s transcript undercuts any argument by Ludwig that the court did not have sufficient evidence upon which to base its exercise of discretion. “Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Attorney LeBloch appears not to appreciate the incongruity of his position in each of the two appeals decided today. If he had prevailed in the conservatorship appeal, he would be representing the conservatee, Raymond. If he had prevailed in this appeal, he would be representing Ludwig, who is being sued by, among others, Raymond’s person and estate. His inability to see the conflict in these two positions is perhaps the best reason of all for refusing to allow him to participate in either proceeding.

 

DISPOSITION

The disqualification order is affirmed. Respondent’s motion to strike is granted as specified in the opinion. The motion for sanctions is denied. Respondent is to recover her costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.