Filed 11/26/19 Profita v. Andersen CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

TAYLOR PROFITA,

Plaintiff and Appellant,

v.

STEPHEN ANDERSEN et al.,

Respondents.

B288078

(Los Angeles County
Super. Ct. No. BP099392)

APPEAL from orders of the Superior Court of Los Angeles County, William P. Barry, Judge. The December 11, 2017 order is dismissed; the March 2, 2018 order is affirmed.

Taylor Profita, in pro. per., for Plaintiff and Appellant.

Law Offices of John A. Belcher and John A. Belcher for Respondents.

Appellant Taylor Profita and respondents Stephen Andersen and Kathleen Brandt have been embroiled in litigation over the disposition of the late Wayne Andersen’s trust assets since Wayne’s death in 2006. (See Andersen v. Hunt (2011) 196 Cal.App.4th 722 (Andersen I); In re Andersen Family Trust (Dec. 1, 2015, No. B255546) [nonpub. opn.] (Andersen II); In re Andersen Family Trust (May 24, 2019, No. B290175) [nonpub. opn.] (Andersen III); In re Andersen Family Trust (June 5, 2019, Nos. B286565 & B286867) [nonpub. opn.] (Andersen IV).) This latest appeal arises from the entry of two monetary sanctions orders against Profita, who challenges both orders. We conclude that no appeal lies from the first order. Although certain sanctions orders may be appealable under the Probate Code, that particular order does not exceed the $5,000 threshold set forth in Code of Civil Procedure section 904.1, subdivisions (a)(11) and (a)(12). That appeal is dismissed. We conclude that Profita has not demonstrated an abuse of discretion regarding the second order, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because the parties are well-acquainted with the facts and labyrinthine procedural history of this case, we recite below only the background most relevant to the resolution of the instant appeals. More detail can be found in our four previous opinions cited above, from which we draw here.

I. Distribution Order

The trial court issued a distribution order dividing the assets of the Andersen Family Trust on September 25, 2017. Pursuant to that order, and the terms of the trust, respondents Andersen and Brandt collectively were awarded 40 percent of the trust assets. The remaining 60 percent of the trust was awarded to Pauline Hunt, trustor Wayne Andersen’s longtime romantic partner. Profita, Hunt’s grandson, was not awarded any assets; the contingency pursuant to which he could have been a trust beneficiary never came to pass.

The award was complicated by the fact that Hunt had misappropriated trust assets during her tenure as trustee and not repaid the trust as ordered by the court years earlier. The court’s distribution order awarded 100 percent of the interest accruing on the outstanding balances to Andersen and Brandt, over Hunt’s objection that she was entitled to receive 60 percent of the trust assets, including the accrued interest on the amounts she owed. Hunt timely appealed the distribution order in late November 2017. (See Andersen IV.)

II. Section 128 Motion and Related Sanctions

On October 30, 2017, Profita, acting in propria persona, filed in the trial court a “Motion for CCP 128 Relief,” ostensibly as a “real party in interest” and “as representative for Pauline Hunt,” who was represented by counsel. In the motion (“the section 128 motion”), which sought to modify or vacate the distribution order, Profita argued that the distribution order’s award of the accrued interest to Andersen and Brandt contravened an earlier order by the court.

On November 7, 2017, Andersen and Brandt moved to strike the section 128 motion and requested sanctions. They argued that Profita lacked standing to challenge the distribution order because he was not a beneficiary of the trust, and could not represent Hunt because he was not an attorney. Andersen and Brandt argued sanctions should be awarded under section 128.5, subdivision (a), because Profita’s section 128 motion “is patently frivolous and is obviously meant to cause further unnecessary delay in the distribution of Trust proceeds.” They requested $3,500 in sanctions.

Profita filed a response, contending that Andersen and Brandt judicially admitted that he was a beneficiary of the trust in a 2007 petition by alleging “Pauline Hunt had herself and Taylor Profita named as a beneficiaries [sic] to the Andersen Family Trust through purported modifications of the Trust.” As a beneficiary, Profita continued, he had standing to bring the section 128 motion. (He did not address his purported representation of Hunt.) Profita also argued that his motion was not substantively frivolous. He also requested sanctions against Andersen and Brandt.

The court heard the section 128 motion and the motion to strike it on December 4, 2017. No reporter’s transcript of the hearing is in the record. On December 11, 2017, the court issued an order finding that Profita’s motion “was frivolous and done without standing,” and that Profita lacked standing to act as counsel for Hunt. The court awarded Andersen and Brandt $3,500 in sanctions.

Profita filed a notice of appeal challenging the $3,500 sanctions order on February 7, 2018.

III. Section 496 Motion and Related Sanctions

On November 29, 2017, before the section 128 motion and motion to strike were resolved, Profita filed a second motion challenging the distribution order, again in propria persona and again purportedly as a “real party in interest” and “as representative for Pauline Hunt.” Profita captioned this filing “Motion for Recovery of Trust Assets and CCP 496(c) Relief” (the section 496 motion). In the section 496 motion, Profita again challenged the distribution order’s allocation of accrued interest. He also contended that the distribution order improperly awarded certain life insurance proceeds to Andersen and Brandt, failed to account for certain repayments Hunt made to the trust, and neglected to award trustee fees to Hunt.

If Andersen and Brandt filed a response to the section 496 motion, it is not in the appellate record. The record contains only a motion for $13,500 in sanctions under section 128.7, which Andersen and Brandt filed on January 11, 2018. (See § 128.7, subd. (c)(1).) In their motion for sanctions, Andersen and Brandt again argued that Profita lacked standing, because he was neither a beneficiary nor a trustee, and could not properly represent Hunt. They further characterized the section 496 motion as a frivolous and improper attempt to relitigate the proper beneficiary of the life insurance proceeds.

The trial court heard the section 496 motion on January 12, 2018. The record does not contain a transcript of the hearing. The court’s minute order states only that “The Motion filed on November 29, 2017 by Taylor Profita is denied without prejudice.” Profita asserted in a later filing that the denial was “based on procedural grounds,” that the court “took no position pertaining to the merits of the issues of the petition,” and that the court invited him to “correct errors in the petition and resubmit said petition to the court.” Andersen and Brandt, on the other hand, claimed that the court “summarily denied” the motion and “made it clear to Profita that he, as a non-beneficiary, lacks standing to challenge the distribution.”

Five days later, on January 17, 2018, Profita filed an opposition to Andersen and Brandt’s still-pending motion for sanctions. Profita again argued that Andersen and Brandt had judicially admitted, via the allegation in their petition, that he was a beneficiary of the trust. Profita further asserted that “The court’s findings and orders from the December 4th hearing declaring otherwise are thus in error, and arguably void,” and that Andersen and Brandt’s counsel admitted he was a contingent beneficiary at the hearing on the section 496 motion. Profita also argued that sanctions were not proper under section 128.7 because his section 496 motion—already denied and never refiled—was neither factually nor legally frivolous. He argued there was “clear factual support” for his contentions about the life insurance proceeds and Hunt’s partial repayment of her debt to the trust. He also asserted the motion was not legally frivolous because he had standing to petition the court as a beneficiary of the trust. Citing Probate Code section 24, Profita specifically rejected Andersen and Brandt’s “theory” that his “beneficiary status somehow disappeared because his beneficiary status was contingent, and such a contingency has not taken place to allow such a right to vest.”

Andersen and Brandt filed a reply, reiterating their arguments that the section 496 motion was not meritorious and that Profita lacked standing.

The court heard and granted the sanctions motion on February 14, 2018. No transcript of the hearing is in the record. The court’s minute order states, in relevant part: “The Court finds that Taylor Profita is not a beneficiary of the trust and lacks standing. The Court further finds that Taylor Profita’s arguments on this issue were made in bad faith, were frivolous, and were not in accordance with the plain language of the trust and Probate Code section 24. Mr. Taylor Profita was given sufficient time to withdraw his styled motion and failed to do so.” The court ordered sanctions of $8,000 against Profita. The minute order directed Andersen and Brandt’s attorney to prepare an order after hearing.

On March 2, 2018, the court signed and filed the proposed section 128.7 sanctions order Andersen and Brandt’s attorney prepared. The order was substantively identical to the February 14, 2018 minute order. Profita timely filed a notice of appeal challenging the March 2, 2018 order.

IV. Other Relevant Proceedings

After the court issued its second sanctions order, Andersen and Brandt moved to declare Profita a vexatious litigant under section 391, subdivisions (b)(2) and (b)(3). The trial court granted the motion, and Profita appealed. We ultimately concluded that Profita’s conduct did not rise to the level of vexatiousness and reversed the order. (See Andersen III.) In doing so, we remarked: “This is not to endorse the conduct of either side in this litigation. The record reveals a proliferation of ad hominem attacks, a troubling lack of civility by all involved, and an apparent lack of standing by appellant [Profita], who has never properly intervened or substituted into this case. Additionally, appellant’s filings, while insufficient in number to support a vexatious finding at this juncture, are suggestive of a tendency to reiterate arguments rejected by the court and reraise previously resolved issues.” (Id. at p. 18.) We cited as an example of this tendency Profita’s “insistence . . . that his alleged status as a trust beneficiary gives him standing to sue.” (Id. at fn. 6.) We did not address the merits of Profita’s section 128 motion or 496 motion. (Id. at fn. 5.)

We also resolved Hunt’s appeals from the distribution order and denial of her request for attorney fees. (Andersen IV.) Profita purported to be party to those appeals, in his individual capacity and as Hunt’s attorney-in-fact. After Hunt’s death in early 2018, Profita did not seek to substitute into the case as her successor in interest, though he purports to be her “only living descendant,” her “successor in interest,” and the trustee of “Pauline’s Trust.” We did not address Profita’s standing, though we concluded that the appeals could proceed in Hunt’s name under section 368.5. (Andersen IV.) On the merits, we reversed the distribution order “to the extent that it awards [Andersen and Brandt] 100 percent of the interest accrued on the amounts due to the trust and estate.” (Id. at p. 21.) We affirmed the distribution order in all other respects, and also affirmed the trial court’s denial of Hunt’s request for attorney fees. (Id. at p. 26.)

DISCUSSION

I. Appealability

Profita appeals two separate sanctions orders, in the amounts of $3,500 and $8,000, and asserts that “[o]rders for sanctions are appealable under Code of Civil Procedure 904.1(a)(2).” Andersen and Brandt do not address appealability in their response brief. Thus, neither side appears to have considered the exclusive appealability provisions governing trust cases, Probate Code sections 1300 and 1304. “It is well established that ‘[a]ppeals which may be taken from orders in probate proceedings are set forth in . . . the Probate Code, and its provisions are exclusive.’” (In re Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; see also Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575.) “‘There is no right to appeal from any orders in probate except those specified in the Probate Code.’ [Citation.]” (In re Estate of Stoddart, supra, 115 Cal.App.4th at p. 1126; see also section 904.1, subd. (a)(10) [making appealable orders “made appealable by the Probate Code”].)

Sanctions orders are not explicitly listed as appealable in Probate Code sections 1300 or 1304. However, courts have entertained appeals from them. (See, e.g., Levy v. Blum (2001) 92 Cal.App.4th 625). More importantly, Probate Code section 1300, subdivision (e) makes appealable orders “[f]ixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney.” The sanctions orders here were entered pursuant to sections 128.5 and 128.7. Section 128.5 authorizes sanctions in the amount of “the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (§ 128.5, subd. (a).) Section 128.7 authorizes sanctions “directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.” (§ 128.7, subd. (d).) Thus, the orders appealed from here are orders “[f]ixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney” and thus are appealable under Probate Code section 1300. Concluding otherwise would insulate such orders from review.

That being said, we also recognize that sections 128.5 and 128.7 do not have “‘a specific statutory counterpart in the trust law.’” (Chatard v. Oveross (2009) 179 Cal.App.4th 1098, 1109.) Where the Probate Code lacks a specific rule on a procedural issue, “the rules of practice applicable to civil actions, . . . apply to, and constitute the rules of practice in, proceedings under” the Probate Code. (Probate Code, § 1000, subd. (a).) The rules of practice applicable to appeals from sanctions orders provide that such orders generally are not appealable unless the sanctions amount “exceeds five thousand dollars ($5,000).” (§ 904.1, subds. (a)(11), (12).) Multiple orders may not be aggregated to clear this threshold. (Calhoun v. Vallejo City Unified School District (1993) 20 Cal.App.4th 39, 43-44.) Sanctions orders of $5,000 or less only “may be reviewed on appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.” (§ 904.1, subd. (b).)

We sent a letter to the parties, pursuant to Government Code section 68081, soliciting their views on whether the December 11, 2017 sanctions award of $3,500 was appealable under these provisions. After considering the parties’ briefs, we conclude that the $3,500 sanctions order is not appealable. It does not exceed $5,000, does not follow a final judgment, is not one of the substantive orders described in the Probate Code provisions cited by Profita (section 1300, subdivisions (a), (b), or (d), and section 1303 subdivision (f) or (g)), and cannot be considered in conjunction with the already-resolved appeal from the distribution order. No petition for extraordinary writ has been sought or granted. We thus dismiss the appeal as to the $3,500 order and consider only the appeal as to the $8,000 order.

II. Section 128.7 Sanctions Order

Profita contends the $8,000 sanctions order issued pursuant to section 128.7 must be reversed for several reasons. First, it impermissibly overturned the trial court’s previous ruling denying his section 496 motion without prejudice. Second, it “violated the statutory terms” of section 128.7 because the court did not provide sufficient facts to establish that the section 496 motion was filed for an improper purpose. Third, “Profita is, undeniably, Pauline Hunt’s successor in interest to the Andersen Family Trust, and assertion to the contrary is evidence of nothing other than disregard of the law.” We reject these contentions and affirm the order.

A. Legal Framework

Section 128.7 provides that attorneys or unrepresented parties who file a signed motion with the court thereby represent “(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (§ 128.7, subd. (b).) The statute further authorizes the court to impose sanctions for violations of subdivision (b). (§ 128.7, subd. (c).) It may do so on its own motion or on the motion of another party, after providing the party with notice and a reasonable opportunity to respond. (§ 128.7, subds. (c)(1), (c)(2).)

Sanctions imposed under section 128.7 must be “limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (§ 128.7, subd. (d).) Sanctions may include “directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.” (Ibid.)

The court is required to “describe the conduct determined to constitute a violation of [section 128.7] and explain the basis for the sanction imposed.” (§ 128.7, subd. (e).) Unlike section 128.5, subdivision (c), which explicitly requires sanctions imposed under section 128.5 to “be in writing and . . . recite in detail the action or tactic or circumstances justifying the order,” section 128.7 contains no requirement that the explanation be detailed or in writing. Indeed, a committee note to section 128.7’s federal analogue, Federal Rule of Civil Procedure 11, requires only that the court state its reasons on the record. “[F]ederal case law construing rule 11 is persuasive authority with regard to the meaning of Code of Civil Procedure section 128.7.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167; see also Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.)

We apply the abuse of discretion standard of review. (Optimal Markets, Inc. v. Salant, supra, 221 Cal.App.4th at p. 921.)

B. Analysis

1. Profita has not shown that the sanctions order overturned a previous order.

On January 12, 2018 the trial court heard Profita’s section 496 motion and issued a minute order stating that the motion “is denied without prejudice.” On February 14, 2018, a different judge heard the section 128.7 sanctions motion concerning the section 496 motion. The minute order documenting that hearing states that the court “finds that Taylor Profita is not a beneficiary of the trust and lacks standing,” and “further finds that Taylor Profita’s arguments on this issue were made in bad faith, were frivolous, and were not in accordance with the plain language of the trust and Probate Code section 24.” Profita argues that the second order impermissibly conflicts with the first, because the court “specifically took no position on the merits of Profita’s motion and certainly did not find it to be frivolous or submitted in bad faith when it denied his motion without prejudice.” He further contends that the second judge (who ultimately took over the case) “willfully ignored and effectively overturned the binding order of the court that established the court took no position as to the merits of the filing.”

As Profita argues, we previously stated in Andersen IV that a trial court may not set aside an order made by a previous trial court “except in rare cases where the original order was inadvertently, mistakenly, or fraudulently made.” This principle of law remains valid. However, it is not applicable here because there is no evidence in the record demonstrating an inconsistency between the two orders, or the necessary overruling of the first by the second.

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. . . .’ ‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609,

fn. omitted.)

Here, although a court reporter was present at both the January 12 and February 14, 2018 hearings, the record on appeal does not contain a reporter’s transcript of either proceeding. The parties offered conflicting summaries of the January 12, 2018 hearing, with Profita representing that the court denied his section 496 motion “on procedural grounds,” “took no position pertaining to the merits of the issues,” and invited him to refile it, and Andersen and Brandt claiming that the court “summarily denied” the motion and “made it clear to Profita” that he had no standing. We are not able to determine what happened at the January 12, 2018 hearing, on what basis the trial court denied the section 496 motion, or what explanation it may have provided for its decision.

Profita bears the burden of showing error. In the absence of a reporter’s transcript or other record of the hearing below supporting his contention, Profita’s bare assertion that the court “specifically took no position on” the merits of his section 496 motion by denying it without prejudice is insufficient to carry that burden.

2. Profita has not shown that the sanctions order was insufficiently detailed.

Profita next argues that the section 128.7 sanctions order must be reversed because the minute order and virtually identical subsequent written order do not “describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” (§ 128.7, subd. (e).) This argument cannot succeed on the record before us.

The order on its face describes the sanctionable conduct and provides the basis of the court’s decision. It states: “The Court finds that Taylor Profita is not a beneficiary of the trust and lacks standing. The Court further finds that Taylor Profita’s arguments on this issue were made in bad faith, were frivolous, and were not in accordance with the plain language of the trust and Probate Code section 24.” This written language describes the conduct—filing a motion without standing to do so and making bad faith, frivolous arguments therein. Even if further explanation were required, that explanation need not have been in writing. As we explained above, section 128.7 does not require the trial court to explain its sanctions in writing. The court held a hearing on the motion and may well have further detailed the conduct and its rationale for imposing sanctions orally at that time. We are obligated to presume that it did. (Jameson v. Desta, supra, 5 Cal.5th at p. 609; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

3. Profita has not shown that he had standing.

Profita’s standing has been at issue throughout this litigation. For much of the litigation, including both motions that prompted sanctions and even to some degree in his current appellate briefing, Profita has argued that he has standing to participate in the litigation because Andersen and Brandt alleged in their petition that he was a trust beneficiary. As the trial court found, and we strongly suggested (see In re Andersen Family Trust (May 24, 2019, No. B290175) [nonpub. opn.]), that argument lacks merit. Profita was named a contingent beneficiary, one who would take if and only if his grandmother, Hunt, predeceased trustor Wayne Andersen. After Wayne Andersen died in 2006, and Hunt survived him, Profita was no longer a potential beneficiary of the trust. He thus did not have standing as such to pursue relief related to the trust or its distribution. Our denial of Andersen and Brandt’s motion to dismiss one of the previous appeals before merits briefing does not prove the contrary, just as the trial court’s denial of Profita’s section 496 motion without prejudice does not prove the motion was not frivolous or sanctionable.

Since Hunt’s death in February 2018, Profita has shifted his standing argument. He now contends that he has standing as Hunt’s successor in interest, because he “is Hunt’s only descendant, and thus her only heir and issue. California code could not be clearer that, as her only heir, Profita is her successor to the claims of the Andersen Family Trust. This is not a fact up for debate or evaluation.”

Nothing in the record supports either of Profita’s standing arguments. He is not a trust beneficiary, and the record does not demonstrate that he is Hunt’s successor in interest. It is unclear whether Hunt died intestate or had a will, or whether she may have other surviving family members or heirs; her brother was mentioned in her power of attorney paperwork. Similarly, the record alludes to a “Pauline Strong Hunt Family Trust,” but provides no information about the terms of that trust or the rights Profita or others may have under it. The “Grant and Assignment” purportedly transferring Hunt’s rights in the litigation to Profita (in his capacity as trustee of the Pauline Strong Hunt Family Trust) as of August 7, 2008 was not produced until nearly a decade later, after litigation proceeding in Hunt’s name with no objection from Profita resulted in decisions that are now the law of the case. Moreover, as we previously observed, Profita “has never properly intervened or substituted into this case,” either in his capacity as Hunt’s alleged successor or as trustee of the Pauline Strong Hunt Trust. (In re Matter of Andersen Family Trust (May 24, 2019, No. B290175) [nonpub. opn.].) Even if we were to assume Profita is now Hunt’s sole successor and heir, he was not her survivor at the time he filed the motions for which he was sanctioned. Nor had he produced the “Grant and Assignment,” or otherwise argued any basis for standing aside from his alleged beneficiary status. The trial court did not abuse its discretion in concluding that he lacked standing and otherwise acted in bad faith such that sanctions were warranted.

DISPOSITION

The appeal as to the $3,500 sanctions order dated December 11, 2017 is dismissed. The $8,000 sanctions order dated March 2, 2018 is affirmed. Respondents are awarded their costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J.