Opinion
A152547
09-12-2018
Conservatorship of the Estate of MARY CATHERINE FARLEY. WILLIAM H. STEPHENS, Petitioner and Appellant, v. FRANCES J. FARLEY, as Conservator, etc., Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. PR 045634)
Retired attorney William H. Stephens appeals in propria persona from a probate court order denying his claim against the conservatorship estate of Mary Catherine Farley. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Frances J. Farley became the conservator for her mother, Mary, in February 2005. The conservatorship estate's chief asset was Mary's residence in Sausalito, but the property was in foreclosure and title was no longer in Mary's name. Stephens was Farley's attorney from 2005 until August 2007. During that time, Stephens provided Farley with legal services and loaned Farley money to forestall foreclosure and return title of the property to Mary. Farley agreed to pay Stephens $100,000 for legal services. Lois A. Prentice substituted in as Farley's counsel in September 2007. Thereafter, Stephens sought repayment of the loan and payment for legal services; the parties agreed Stephens would be reimbursed from the proceeds of the sale of the property. Mary died in June 2009.
We refer to Mary by her first name for clarity, intending no disrespect. The factual summary in Stephens's opening brief is incomplete and unsupported by sufficient record citations. This practice violates the Rules of Court and has hampered our review. (Cal. Rules of Court, rule 8.204(a)(2)(C).) We disregard factual assertions not supported by record citations. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
In 2011, the court approved the sale of the property for $1,615,500 and ordered the net proceeds from the sale—$67,201.10—to be held by Prentice, as trustee, in her legal trust account until the court issued a written distribution order.
In 2010, Stephens filed a complaint against Farley as an individual and in her capacity as the conservator (civil case) (Stephens v. Farley (Super. Ct. Marin County, 2014, No. CIV 1001893)). Among other things, Stephens alleged claims for declaratory relief and breach of contract, seeking to recover the money he loaned Farley, and payment for his legal services. In 2012, Farley filed a fourth and final account and report to close the conservatorship of the estate (final accounting). Stephens opposed the final accounting and requested conservatorship proceedings "be abated pending the conclusion" of the civil case. In early 2013, the probate court stayed the conservatorship proceedings.
In 2014, the trial court issued a judgment in the civil case, for Stephens and against Farley in her capacity as personal representative of Mary's estate. As amended, the judgment ordered Farley to pay $192,245.00, plus interest "for the amounts loaned" and $100,000 for "reasonable attorney's fees." The court also granted Stephens's "request for declaratory relief, finding that [he] has a security interest in the proceeds from the sale of the real property . . . , which has priority over any other claims against the estate. The proceeds from the sale of the real property shall be distributed to [Stephens]."
The amended judgment is the only document from the civil case in the appellate record. --------
In May 2017, Stephens petitioned in this matter to "dissolve and distribute [the] court-ordered trust." Stephens alleged he was a judgment creditor of the estate "by reason of the . . . Judgment" in the civil case and that he was entitled to the money held in "trust" by Prentice after the property was sold. Stephens requested the court direct Prentice to "distribute all sums held to [him] forthwith." Farley opposed the petition and requested the court approve the final accounting. In reply, Stephens urged the court to "follow the doctrines of res judicata and collateral estoppel" and grant the petition.
In August 2017, the court issued a "final order" lifting the stay and denying Stephens's claim against the conservatorship estate. The court rejected Stephens's claim that the judgment in the civil case "amounts to a secured interest in this conservatorship estate," explaining: "Stephens' judgment is against the conservator . . . Farley in her capacity as personal representative of the estate of the decedent. The judgment is not a valid claim against this conservatorship estate." The court directed certain payments to be made from the conservatorship estate to various third parties; it also accepted the final accounting and terminated the conservatorship estate. The court denied Stephens's reconsideration motion.
DISCUSSION
A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) The appellant has the burden to affirmatively demonstrate reversible error. (Id. at p. 978.) This burden includes: (1) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record; and (2) showing exactly how the error caused a miscarriage of justice. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Additionally, " '[a]rguments should be tailored according to the applicable standard of appellate review.' [Citation.] Failure to acknowledge the proper scope of review is a concession of a lack of merit." (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
Stephens challenges the final order on several grounds but does not address the standard of review. As we explain below, we reject Stephens's contentions because they are unsupported by cogent legal argument, authority, or analysis. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) Stephens's first claim is the order violates the collateral estoppel doctrine. We disagree. Stephens acknowledges the record in the civil case is not before us. As result, Stephens cannot establish the elements of the collateral estoppel doctrine, including that "preclusion is sought against a person who was a party or in privity with a party to the former proceeding." (See Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398-399 [listing and discussing elements].) It is not enough to make the conclusory assertion that "[a] reading of the Amended Judgment clearly shows that the Civil action and the Probate proceedings involve identical issues between the same litigants," particularly where the trial court found otherwise. We are not persuaded that the judgment in the civil case against Farley created a lien against the conservatorship estate assets. (See Estate of Casserley (2018) 22 Cal.App.5th 824, 830, fn. 7.)
Next, Stephens argues the order violates the judicial estoppel doctrine. We reject this contention because Stephens did not raise judicial estoppel in the trial court. "Generally, a party may not raise a new contention on appeal." (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 51.) " 'This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal; and it also reflects principles of estoppel and waiver.' " (Vallejo Police Officers Assn v. City of Vallejo (2017) 15 Cal.App.5th 601, 621.) The argument fails for the additional reason that Stephens acknowledges there is no authority supporting it. (See Seymour v. State of California (1984) 156 Cal.App.3d 200, 204-205 [observing the plaintiff "concedes he has found no case" applying estoppel to the facts at issue].)
Third, Stephens argues the order is arbitrary, and unsupported by evidence or legal authority. This "argument" consists of two sentences and a citation to a dictionary definition of arbitrary. Stephens's "failure to provide us with any cogent analysis of his argument" or to support his argument with citation to any legal authority "waives his claim on appeal." (Gunn v. Mariners Church, Inc., supra, 167 Cal.App.4th at p. 218.) We reach the same conclusion regarding Stephens's claim that the order contradicts a prior probate court order. It is unsupported by intelligible argument or authority. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 ["appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority"].)
DISPOSITION
The August 1, 2017 final order is affirmed. Farley is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.