Opinion
E032140.
11-21-2003
Conservatorship of the Person and Estate of CLIFFORD H. SHERRI K., Petitioner and Appellant, v. JEAN H., et al., Objectors and Respondents.
Sherri K., in pro. per., for Petitioner and Appellant. Millar, Hodges & Bemis and Richard W. Millar, Jr. for Objectors and Respondents Jean H. And Clifford H. Mark K., in pro. per., for Respondent Mark K. Debra K.-F., in pro. per., for Respondent Debra K.-F. Dennis F., in pro. per., for Respondent Dennis F.
PROCEDURAL BACKGROUND
On November 20, 2001, Stanley W. Hodge petitioned the probate court for orders appointing Sherri K. as both the temporary and permanent conservator of the person and estate of Sherris stepfather, Clifford H. At an ex parte hearing on November 21, 2001, a judge pro tem appointed Sherri as the temporary conservator of the person and estate of Clifford, authorized Sherri to change the residence of Clifford, authorized Sherri to list for sale certain real property in Apple Valley belonging to Clifford, and appointed David Brown as the attorney for Clifford.
Other members of Cliffords family failed to surrender Clifford to Sherri at the time specified by the courts order. In response, on November 26, 2001, Sherri sought and obtained orders to show cause re contempt directed at: Jean H., Cliffords wife and Sherris mother; Mark K., Cliffords stepson and Sherris brother; Debra K.-F., Cliffords stepdaughter and Sherris sister; and Scott F., Debras husband and Sherris brother-in-law.
At the same time, Sherri filed petitions for protective orders, alleging that Jean, Mark, Debra, and Scott had subjected Clifford to elder abuse. (Welf. & Inst. Code, § 15657.03.) In response to those petitions, the trial court issued temporary restraining orders and orders to show cause against Jean, Mark, Debra, and Scott.
In December of 2001, Jean retained counsel (Richard W. Millar, Jr.), objected to the petition for appointment of conservator, and filed her own petition for appointment as Cliffords conservator. Mark, Debra, and Scott appeared through attorney Stuart P. Jasper and also objected to the appointment of Sherri.
Sherri voluntarily dismissed the contempt proceedings. The trial court confirmed the sale of the Apple Valley property for $37,000, and ordered Brown to hold the proceeds of the sale in an interest-bearing account.
The opposing petitions for appointment of conservator and the elder-abuse petitions were jointly tried over various dates beginning in January of 2002 and ending on March 15, 2002. On the final date, the court: found that there was insufficient evidence of elder abuse; dissolved the TROs against Jean, Mark, Debra, and Scott; and denied the petitions for permanent protective orders. Finding insufficient evidence that Clifford required a conservatorship, the court denied the two petitions for appointment of conservator and vacated the order appointing Sherri as the temporary conservator.
Sherri moved for an award of temporary conservators fees in the sum of $7,224, expenses in the sum of $17,728.92, and attorneys fees in the sum of $21,253.85, all to be paid from either the proceeds of the sale of the Apple Valley property or from community property assets of Clifford. Jean moved for an award of attorneys fees in the sum of $7,500, to be paid by Sherri. Brown moved for an award of attorneys fees in the sum of $7,366.25 and $35 in costs. Mark, Debra, and Scott moved for an award of attorneys fees in the sum of $10,293 to be paid by Sherri.
After conducting a hearing, taking the matters under submission, issuing a notice of intended ruling, and reviewing the parties various objections to that intended ruling, the trial court ruled on June 3, 2002, as follows: Sherri was awarded conservators fees in the sum of $5,580 and conservators expenses in the sum of $9,348, but was ordered to bear her own attorneys fees. Jean was awarded attorneys fees of $5,428. Brown was awarded fees of $7,741 and costs of $35. Mark, Debra and Scott were awarded fees of $5,428.
Sherri does not appeal from the March 15, 2002, order denying the petition for her appointment as conservator and her petitions for elder-abuse protective orders. Instead, she appeals only from the June 3, 2002, order resolving the various requests for conservators fees, conservators expenses, and attorneys fees. (Prob. Code, § 1300, subds. (e) & (f).)
CONTENTIONS
Sherri contends that every aspect of the June 3, 2002, order is incorrect: the award of attorneys fees to Jean, Mark, Debra, and Scott; the award of attorneys fees to Brown; the award of conservators fees in an amount less than she had requested; the award of conservators expenses in an amount less than she had requested; and the denial of the attorneys fees that she incurred as conservator.
Jean moved for dismissal of the appeal, which we denied. In her respondents brief, Jeans disputes Sherris challenges and renews her request that the appeal be dismissed. The other respondents join in Jeans brief. In addition, Jean moves for an order sanctioning Sherri for prosecuting a frivolous appeal.
ANALYSIS
A. PORTIONS OF THE APPEAL MUST BE DISMISSED.
Citing evidence that Sherri accepted and negotiated without objection a check from Brown for compensation and reimbursement in the amounts specified in the order of June 3, 2002, the respondents argue that Sherri is estopped from challenging the order and that her appeal should be dismissed. Sherri opposes the request to dismiss but does not deny accepting the payments made pursuant to that order.
"It is the general rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal, since the right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other." (Mathys v. Turner (1956) 46 Cal.2d 364, 365.) By accepting the benefits of the judgment or order, the judgment creditor implicitly affirms the validity of the judgment and waives the right to appeal from it. (Lee v. Brown (1976) 18 Cal.3d 110, 114; Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 53.)
But "[t]he application of this general rule is limited where the judgment under consideration consists of severable parts." (Oliver v. Schene (1960) 182 Cal.App.2d 473, 477.) "Where the different portions of a judgment are severable, a party by voluntarily accepting the fruits of one portion thereof does not necessarily estop himself to attack other and severable portions thereof upon appeal." (Preluzsky v. Pacific Co-operative C. Co. (1925) 195 Cal. 290, 293.) The test is whether the appellants right to the accepted benefits will be affected by the outcome of the appeal. (Lee v. Brown, supra, 18 Cal.3d at p. 115.) If, in the event of a reversal and retrial, the amount awarded to and accepted by the appellant in the original judgment could conceivably be smaller in the second judgment, then the two portions of the judgment are interdependent rather than severable, and the acceptance of the benefit of one portion precludes an appeal from the second portion. (Mathys v. Turner, supra , 46 Cal.2d at p. 366; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214.)
Sherri contends that she may accept the compensation for services as conservator and for reimbursement for conservatorship expenses awarded by the trial court while appealing from the trial courts refusal to award her all that she had requested as compensation and reimbursement. In other words, she contends that the portion of the ruling that grants those requests in part is severable from the portion that denies the balance of those requests. She is mistaken. The respondents disputed the amounts due to Sherri both for conservators fees and for conservatorship expenses. In the event of a retrial, the trial court could conceivably award less than it did in its June 3, 2002, order. Therefore, by accepting the sums specified in that order, Sherri waived her right to appeal from the denial of her larger request.
Sherri did not accept any sums that could affect the sums awarded to Jean, Mark, Debra, Scott, or Brown. Nor was she awarded any attorneys fees for her counsel. Those portions of the trial court order are severable from the payments accepted by Sherri. Moreover, any outcome of our review of those portions of the order will not affect the payments accepted by Sherri. Therefore, she is not barred from challenging those portions of the order.
In short, Sherri has waived her claims only to those portions of the order awarding her compensation for conservator services and reimbursement for conservatorship expenses. As to those portions, her appeal must be dismissed. As to the remaining issues, the request for dismissal is again denied.
B. THE TRIAL COURT DID NOT ERR BY AWARDING ATTORNEYS FEES TO JEAN, MARK, DEBRA, AND SCOTT.
Sherri challenges the awards of attorneys fees to Jean and to Mark, Debra, and Scott on a variety of bases. None have merit.
Sherri argues that awards of attorneys fees to successful defendants, as opposed to successful plaintiffs, are not statutorily authorized. She is mistaken. Sherri had sought elder-abuse protective orders under Welfare and Institutions Code section 15657.03. The trial court found that Jean, Mark, Debra, and Scott had successfully defended themselves against the elder abuse petitions and that they were the prevailing parties in those proceedings. Welfare and Institutions Code section 15657.03, subdivision (m), provides: "The prevailing party in any action brought under this section may be awarded court costs and attorneys fees, if any." Therefore, the statute expressly authorizes the recovery of attorneys fees by prevailing parties, whether or not they were the parties that initiated the proceedings. Indeed, Sherris trial counsel expressly acknowledged the applicability of that statute at the hearing on the attorneys fee motions.
Next, Sherri argues that the awards were abuses of discretion because the trial court failed to consider three factors that — she contends without citation to authority — govern awards of attorneys fees under Welfare and Institutions Code section 15657, subdivision (a). But Welfare and Institutions Code section 15657 merely describes the remedies available when a defendant has been found liable for elder abuse.
There being no such finding here, that section is not applicable.
Even if it had been, Sherri would have waived the point by failing to cite any authority for the three criteria she asserts. An appellant must present argument and authority on each point made. (In re Sade C. (1996) 13 Cal.4th 952, 994; Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1088.) When counsel asserts a point but fails to support it with reasoned argument and citations to authority, the court may deem it to be waived, and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Sherris principal argument is that the award is an abuse of discretion because the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600, et seq.) is designed to protect elderly adults from abuse and neglect and "there was an abundance of evidence to determine the infliction of elder abuse by [Jean, Mark, Debra, and Scott] against the conservatee. The trial court failed to objectively view the evidence and demonstrated bias against the initiation of the actions from the first hearing on the matter. Said bias and the resulting order was an abuse of discretion by the trial court."
That reasoning fails as well. To the extent that it contends that the order denying Sherris petitions for protective orders either resulted from judicial bias or was not supported by substantial evidence, Sherri waived those contentions by failing to appeal from that order.
To the extent that Sherri is contending that the trial court erred by finding Jean, Mark, Debra and Scott to be the prevailing parties, that argument also fails. "`Prevailing party includes . . . a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Code Civ. Proc., § 1032, subd. (a)(4).) Sherri did not obtain any relief against the four defendants in her petitions for protective orders. Therefore, the trial court did not err by finding them to be the prevailing parties in those proceedings.
In a challenge specifically to the fees awarded to Jean, Sherri contends that the trial court erred because Jeans attorney represented clients with conflicting interests. Sherri waived that claim by failing to raise it in the trial court.
An "`opposing party should not be required to defend for the first time on appeal against a new theory that "contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial."" (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10, quoting Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Therefore, "[a]s a general rule, `issues not raised in the trial court cannot be raised for the first time on appeal." (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417, quoting Estate of Westerman (1968) 68 Cal.2d 267, 279.) In particular, a party may not appeal from a fee award on the ground that the attorney to whom fees were awarded improperly represented clients with conflicting interests when the appellant could have but did not raise that issue in the trial court. (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 26-27.)
Sherri has not cited us to anything in the record that indicates that she raised this alleged conflict of interest below, either in opposition to Jeans motion for attorneys fees or otherwise. Accordingly, the claim is waived.
Finally, Sherri contends that the trial court abused its discretion in awarding fees because the trial court made certain erroneous and prejudicial evidentiary rulings during the hearing on the merits of the elder abuse petitions, thereby depriving Sherri of a full and fair hearing. Similarly, Sherri argues that the trial courts denial of her request for a continuance prevented her from offering the testimony of a particular witness and deprived her of a full and fair hearing on the merits of the petitions. But as noted above, any claims of procedural errors during the hearings on the petitions were waived by her failure to appeal from the order denying those petitions.
For all these reasons, Sherri has failed to demonstrate any error in the awards of attorneys fees to Jean, Mark, Debra, and Scott.
C. THE TRIAL COURT DID NOT ERR BY AWARDING ATTORNEYS FEES AND EXPENSES TO BROWN.
Brown, the attorney appointed by the trial court to represent the conservatee, applied for an award of attorneys fees in the sum of $7,366.25 and $35 in costs. That request included compensation for some legal services performed after the temporary conservatorship was vacated on March 15, 2002. In opposing Browns application, Sherri argued that his appointment had ended when the temporary conservatorship was vacated and that he was not entitled to any fees incurred thereafter.
The trial court awarded Brown slightly more than he had requested, thereby implicitly overruling Sherris objections. She contends that the trial court erred by doing so.
In arguing that Browns appointment ended on March 15, 2002, Sherri relies on a San Bernardino Superior Court local rule that provides: "The representation of a conservatee by an attorney appointed by the Court ceases upon the hearing for which he or she is appointed, unless otherwise ordered by the Court." (Super. Ct., San Bernardino County, Local Rules, appen. 1, Probate Policy Memorandum, rule 1402.) Her reliance is misplaced. Here, the trial court ordered that, despite the vacation of the temporary conservatorship, Brown was to continue to hold the proceeds of the sale of the Apple Valley property until the motions for fees were made and decided. Thus, the trial court clearly contemplated, and its order implicitly provided, that the vacation of the temporary conservatorship would not mark the end of Browns services on behalf of the conservatee. Therefore, the trial courts award of fees to Brown is not contrary to the local rule.
D. THE TRIAL COURT DID NOT ERR BY DENYING SHERRIS PETITION FOR REIMBURSEMENT OF HER ATTORNEYS FEES.
Sherri asked for an award of attorneys fees in the sum of $ 21,253.85. However, her attorneys declaration established that Sherri had incurred fees (including services rendered by an attorney, a legal assistant, and a secretary) and expenses (such as photocopying and fax charges) in the lesser sum of $ 18,928.25. Nothing in her application explained that discrepancy.
Jean opposed the request on the ground that the fees requested include substantial and unsegregated professional services to prosecute the unsuccessful petitions for elder-abuse protective orders and the abandoned contempt citations. At the hearing on the motion, rather than propose a means of quantifying the fees for the various types of proceedings, Sherri insisted that she was entitled to fees for the elder-abuse petitions, for a separate application for a restraining order that was prepared but never filed, and for the contempt proceedings.
Jean also opposed Sherris request for attorneys fees on the ground that there is no statutory authority requiring the court to award attorneys fees to a temporary conservator who was not successful in having a permanent conservatorship established. Sherri responded by conceding that she had not cited any statutory authority or obligation of a court to order reimbursement for her attorneys fees and expenses, but argued that nothing prohibited such an award.
The trial court did not expressly address either of these arguments when it denied the fee request. Instead, it emphasized that Sherris showing in support of the petition for a temporary conservatorship had been weak, that she had failed to prove the need for a permanent conservatorship, and that she had used "poor judgment in the filing of the initial action and in the prosecution of the various petitions and actions herein."
On appeal, Sherri repeatedly argues that the denial of attorneys fees was an abuse of discretion. She is mistaken.
Probate Code section 2640 provides that, upon a hearing on a petition by a conservator for an order allowing compensation to the attorney for the conservator, the trial court shall allow reasonable compensation to the attorney. (Prob. Code, § 2640, subd. (c).) The statute makes no distinction between temporary conservators and permanent conservators, and we perceive no reason to draw one. A temporary conservator is entitled to reimbursement of attorneys-fee expenses properly incurred for the conservatees benefit during the term of that temporary appointment, regardless of whether a permanent conservator is ever appointed.
The deciding factor is whether the attorneys fees were properly incurred.
Both temporary and permanent conservators are fiduciaries. "[A]s a fiduciary, a conservator is bound to act with reasonable prudence and pursuant to a good-faith belief that its actions will tend to accomplish the purpose of its trust by benefiting the conservatee." (Conservatorship of Lefkowitz (1996) 50 Cal.App.4th 1310, 1314.) A conservator or other "trustee may not be indemnified for an expense unless the trustee subjectively believed that the expense was necessary or appropriate to carry out the purpose of the trust and that belief was objectively reasonable." (Ibid.) Thus, Sherri was entitled to reimbursement for the attorneys fees that she incurred in prosecuting the petition for appointment of conservator, the contempt citations, the elder-abuse petitions, and the unfiled application for restraining orders only if (1) she was reasonably prudent in incurring those attorneys fees, (2) she subjectively believed that the attorneys services would be in the best interests of Clifford, and (3) the trial court found that her belief was objectively reasonable.
By finding that Sherri had used "poor judgment" in bringing her various petitions, the trial court found that Sherri had not acted prudently by incurring the attorneys fees involved in doing so. By finding that there were insufficient grounds to justify a permanent conservatorship, by finding that the grounds for a temporary conservatorship had been "weak," and by denying the attorneys-fee request, the trial court implicitly found that any belief that the various petitions would benefit Clifford would not have been objectively reasonable.
Those are factual determinations to which we must defer if they are supported by substantial evidence. Sherri has not demonstrated that there is insufficient evidence to support any of those findings. Accordingly, she has failed to establish that the trial court erred in determining that Sherri was not entitled to reimbursement for the attorneys fees that she incurred as conservator.
E. SHERRI SHOULD BE SANCTIONED FOR PROSECUTING A FRIVOLOUS APPEAL.
On the motion of either a party or the court itself, an appellate court may impose monetary sanctions on an appellant who prosecutes a frivolous appeal (Code Civ. Proc., § 907; Cal. Rules of Court, rule 27(e)(1)(A)), who includes in the record on appeal immaterial portions of the trial court proceedings (id. , rule 27 (e)(1)(B)), or who unreasonably violates the Rules of Court (id., rule (e)(1)(C)). Citing those provisions, Jean moved for an award of sanctions in the sum of $1,184.50 for the cost of preparing the record and $10,885 for attorneys fees incurred by Jean in defending against Sherris appeal.
An appeal is frivolous if it meets either one of two independent standards, "one subjective and one objective: `[W]hen it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1075, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The two standards are often considered together, because an appeals total lack of merit is evidence that the appellant brought it for an improper motive. (Flaherty , p. 649.)
1. Sherris Appeal Is Totally Meritless.
In her opposition to the motion for sanctions, Sherri does not address the merit of her appellate claims, either in the abstract or in light of the arguments in Jeans respondents brief. Instead, she makes ad hominem attacks on the integrity and motives of Jean and Millar, her counsel. But a review of her claims reveals that all of them — both those that we discussed on the merits and those that we dismissed — are totally and completely without merit.
a. The Portion of Her Appeal that Was Not Dismissed Is Meritless.
As explained in detail above, Sherris appeal lacks any merit whatsoever.
Her attack on the award of fees to Jeans attorney is illustrative. Her argument that only a plaintiff may recover fees in an elder-abuse petition is directly contrary both to her own counsels admission in the trial court and to the express language of the statute. (Welf. & Inst. Code, § 15657.03, subd. (m).) She relies on statutes that have no application. (Id ., § 15657, subd. (a).) She makes legal assertions without citing to applicable authority, and she makes factual representations without citing to the record. She fails to apply the proper standard of review. She relies on alleged errors in orders from which she has not appealed. She raises factual claims on appeal that she never raised below.
Her meritless claims that the trial court abused its discretion by granting fees to Brown — a disinterested attorney appointed by the trial court to assume the thankless role of defending the interests of the conservatee in this internecine squabble — appear designed to punish Brown for opposing her. And in light of the trial courts factual findings that she had not exercised prudence in bringing the various petitions for which she sought to recover her attorneys fees, her claim that the trial courts denial of that request was an abuse of discretion was entirely unfounded.
No reasonable attorney — and we note that, by her own admission, Sherri is a licensed California attorney — would believe that her appellate claims could possibly succeed.
b. The Dismissed Portions of Her Appeal Are Also Totally Meritless.
Her continued attempt to appeal from the rulings on her requests for compensation for her conservator services and for reimbursement of her conservatorship expenses — after she had accepted the benefits of the rulings that she seeks to challenge — is also totally meritless, especially after Jean alerted Sherri to the issue by bringing a motion to dismiss the appeal. But even if the law had allowed Sherri to have her cake and eat it too in this fashion, her claims of error were entirely meritless.
For instance, Sherri initially requested an award of conservator fees of $7,224. In opposing her request, Jean argued that the facts justified an award of not more than $5,580. When addressing that issue at the hearing on the motion, Sherris counsel stated: "We would not object to the Court ordering that lesser number . . . ." A few moments later, referring to "the amount which Mr. Millar suggested," her counsel again represented to the trial court: "$5,580, rather than the $7,224 that we request[ed], and we would not object to that as the Courts order." The trial court subsequently awarded $5,580.
Even though she expressly consented to an award of $5,580 rather than the $7,224 that she had originally requested, Sherri now contends that the trial court erred by awarding the lesser amount. She will not be heard to do so.
A party who expressly agrees to an action taken by the trial court waives any challenge to that action on appeal. (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) ¶ 8:250, p. 8-121.) By expressly agreeing that she "would not object" to an award of the lesser sum, Sherri waived any claim to any greater sum. Even if it had erroneously resulted in less than adequate compensation to her, she would be estopped from complaining of any error that she had invited the trial court to commit. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403; In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640.)
Sherris contention that the trial court abused its discretion by awarding $9,348 to reimburse her for the expenses that she reasonably incurred as temporary conservator rather than the $ 17,728.92 that she had requested is equally devoid of merit.
First, she argues that the trial court erred by awarding fees to the respondents attorneys without first "reimbursing [Sherri] for the reasonable and just costs of care and maintenance of the conservatee," citing Probate Code section 2430, subdivision (a). Her reliance on Probate Code section 2430 is misplaced. That section merely defines the authority of a conservator to pay the debts of the conservatee. It is not a limitation on the power of the trial court. Therefore, it does not establish that the trial court erred by awarding attorneys fees to the respondents at the same time that it compensated Sherri for her expenses as conservator.
Second, Sherri complains that the trial courts order "did not detail or define which costs were being reimbursed and which were being denied." That is not entirely true, because the trial court expressly denied reimbursement for any costs incurred prior to November 23, 2001. But to the extent that the order does not explain the balance of its ruling with similar detail, it did not err. Factual findings are not required absent a request for a statement of decision (Code Civ. Proc., § 632), and Sherri did not request one.
Third, Sherri argues that the trial court erred by failing to fully reimburse her for the expenses that she incurred in caring for the conservatee. But she has not established that the trial court failed to do so. Jean had opposed Sherris request on the grounds that it included over $4,000 in expenses incurred prior to Sherris appointment as temporary conservator at a time when the conservatee did not reside with her, it included hundreds of additional dollars for the care of a horse that did not belong to the conservatee, it included many other expenses unrelated to the care of the conservatee, and it was poorly documented. Although Sherri derides these objections as being frivolous, she has not explained why they are without merit or why the trial court would have erred by sustaining them.
The only objection that Sherri addresses at all is the issue of her preappointment expenses. She asserts that, "[a]s evidenced by the receipts submitted by Appellant, the purchased [sic] were for necessary medical equipment and medicines and ointments necessary for the proper care of the conservatees needs." But she fails to cite to where in the record these particular receipts may be found.
"It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205; accord, Cal. Rules of Court, rule 14(a)(1)(C).) If a party fails to support a factual assertion in its brief with citations to the record, the appellate court may disregard that assertion (Grant-Burton v. Covenant Care, Inc . (2002) 99 Cal.App.4th 1361, 1379) and may deem the party to have waived any argument that depends upon the truth of that assertion (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856). Having failed to support her factual assertions with citations to the record, Sherri has waived her argument that the preappointment expenses were justified.
Moreover, the authority on which Sherri relies for the proposition that preappointment expenses may be reimbursed provides that the test is whether the expenses were paid with the intention to make a gift or with the expectation that they would be reimbursed. (Guardianship of Giambastiani (1934) 1 Cal.App.2d 639, 643-644.) Sherri has not cited us to any evidence on this issue either. Accordingly, the point is doubly waived.
Fourth and finally, Sherri argues that the trial court improperly limited itself to dividing the proceeds of the sale of the Apple Valley property rather than considering the availability of the conservatees full estate to satisfy the conservatorship expenses. But that assertion is directly contradicted by her opposition to Jeans motion to dismiss, in which Sherri stated that "while there is reference [in the order] to a desire to deplete these funds there is never any hint that the trial court actually reduced any claims pro rata or in any other manner relating to the unavailability of other funds." She will not be heard to argue against herself.
In short, all the arguments that she raises in the dismissed portions of her appeal are entirely devoid of merit.
2. Sherri Appealed for an Improper Purpose.
As noted previously, that an appeal has no arguable merit whatsoever suggests that it is brought for some purpose other than to gain a reversal of the judgment or order appealed from. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 649; see Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1316; Town of Woodside v. Gava (1989) 213 Cal.App.3d 488, 494.) Jean has provided ample evidence that Sherris purpose was to harass people that she hated, i.e., her mother, Jean, and the other respondents.
At the hearing on the petition for appointment of conservator, Sherri denied that she hated her mother, but admitted that she "hate[s] the things [Jean] does" and has hated them for "[q]uite a few years." Sherri puts it more mildly in her opposition to the motion for sanctions, in which she concedes: "Appellant admittedly does not like the Respondents. Appellant finds the behavior and greed of Respondents and their counsel repugnant. Appellant is embarrassed of [sic] her relation to Respondents and desires no contact with them."
That hatred has not abated since the trial court action ended. Following a court hearing in Orange County in December of 2002, five months after filing the instant appeal, Sherri addressed her mother, Jean, as "you old bag" and addressed Jeans counsel as "you fuck." In February of 2003, Sherri left an extraordinarily vitriolic and hateful message on her mothers voice-mail system. In that message, Sherri repeatedly referred to her mother by epithets such as an "old hag," a "fuckin[g] hag," a "bitch," an "old bitch," and a "fuckin[g] bitch." In the same message, Sherri said that Jean was "evil and worthless" and that Jean "should rot in hell you old fuckin[g] hag . . . ." Similarly, Sherri referred to Jeans other children, Sherris siblings, as "your fat daughter [and] your fat son . . . ."
These hateful statements to and concerning the respondents, particularly when viewed in light of the utterly meritless arguments raised in her briefs and the haphazard manner in which she presented them, leaves us with the firm conviction that Sherri has prosecuted her appeal for the purpose of harassing the respondents. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32, fn. 9.) That conclusion is strengthened by the fact that, as an attorney, Sherri is able to prosecute the harassing appeal without cost to herself because she is appearing in propria persona. (Cf. Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1465.)
3. Monetary Sanctions of $10,885 Are Appropriate.
We impose a penalty for a frivolous appeal for two basic reasons: to discourage further frivolous conduct and to compensate for the loss that resulted from the frivolous conduct in this instance. (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 33.) Accordingly, one of the factors to be considered in determining the appropriate amount of sanctions is the amount of attorneys fees incurred by the respondent in defending against the appeal. (Id., pp. 33-34.) In defending against Sherris appeal, Jean has incurred attorneys fees in the sum of $10,885. Sherri has not challenged the reasonableness of those fees in her opposition to the motion for sanctions. Neither do we. We shall order Sherri to pay $10,885 to Jean as sanctions for prosecuting a frivolous appeal.
DISPOSITION
That portion of the appeal that challenges the rulings on Sherris application for compensation for services as temporary conservator and for reimbursement of conservatorship expenses is dismissed. The order is affirmed.
Not later than 30 days from the issuance of the remittitur, appellant Sherri K. shall (1) pay to respondent Jean H. the sum of $10,885 as sanctions for prosecuting a frivolous appeal (Code Civ. Proc., § 907; Cal. Rules of Court, rule 27(e)) and (2) report the sanctions order to the State Bar of California (Bus. & Prof. Code, § 6068, subd. (o)(3)).
The clerk of this Court is directed to send a copy of this opinion to the State Bar of California upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd. (c).)
The respondents shall recover their costs on appeal.
We concur: Hollenhorst, Acting P.J., Gaut, J.