Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. PES-94-262684
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Ronald Daley (Ronald) appeals the denial of his petitions for (1) an order requiring Daniel Conrad (Conrad), the attorney representing respondent Gregory P. O’Keeffe, administrator of the estate, to return $13,329.53 in legal fees paid to him from the estate, and (2) an order compelling respondent to forward every billing statement he receives from Conrad to Ronald and his sister, Carolyn Daley, within five days of receipt. We dismiss the appeal from the first order as moot and affirm the second order.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is the seventh appeal arising out of this seemingly endless estate proceeding. Ronald’s eighth appeal is pending. As we have stated in prior opinions, it is unnecessary for us to detail the factual background of this estate proceeding as the facts are well known to the parties and to this court and have been recited in our prior opinions.
The six prior appeals were O’Keeffe v. Daley (Oct. 11, 2006, A109762 [nonpub. opn.]), the consolidated cases, Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), O’Keeffe v. Daley (Apr. 29, 2008, A118233 [nonpub. opn.]), O’Keeffe v. Daley (Sept. 16, 2008, A120213 [nonpub. opn.]), and O’Keeffe v. Daley (Oct. 28, 2008, A120596 [nonpub. opn.]). The court takes judicial notice of these opinions. (See Evid. Code, §§ 452, subd. (d), 459.)
A123021.
On January 2, 2008, Ronald filed a petition “for an order to compel [respondent] to forward each and every billing [he] receives from [Conrad] in matters of the estate upon his receipt of such billings to heirs Carolyn Daley and Ronald Daley.” That same day he also filed a second petition “for an order requiring [Conrad] to return to [respondent] $13,329.53 which was authorized as partial payment of funds distributed from estate assets,” and a third petition “to establish the reasoning supporting Judge Dearman’s December 6, 2007 order and seeking clarification of what law statutory [sic] and or case law which Judge Dearman has relied on to support his order.” Respondent prepared responses to all three petitions, which were served on March 5, 2008.
The appendix prepared by Ronald does not include file stamped copies of respondent’s pleadings. Nor has he submitted to this court a copy of the probate court’s register of actions. For purposes of this appeal, we will assume the responses were filed with the court below.
A hearing on the petitions was held on March 18, 2008. The court denied all three petitions. This appeal of two of the trial court’s orders disposing of the petitions followed.
DISCUSSION
A. The Petition Demanding Clarification of the December 6, 2007 Order
We first observe that while, in his opening brief, Ronald purports to be appealing the denial of all three petitions, his notice of appeal states that he is appealing only two of the denials: the denial of the petition demanding the return of $13,329.53, and the denial of the petition demanding copies of Conrad’s billing statements. Accordingly, we will not consider any of the parties’ arguments relating to the denial of the petition that demanded clarification of the probate court’s December 6, 2007 order.
In any event, the ruling is moot as we vacated the December 6, 2007 order (which was actually entered on December 7, 2007) in appeal A120596.
B. The Petition for the Return of $13,329.53 is Moot
In appeal A120213, on September 16, 2008, we affirmed the probate court’s October 2, 2007 order authorizing payment of fees in the amount of $13,329.53 to Conrad. Accordingly, Ronald’s petition demanding that Conrad return this amount to respondent is now moot. “A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) Ronald apparently still desires a ruling on this matter, noting that the issue was not moot at the time of the March 18, 2008 hearing because our opinion in appeal A120213 had not yet been filed. However, because the matter is moot now, a ruling would serve no purpose.
C. The Petition for Copies of Conrad’s Billing Statements
Ronald complains that the probate court abused its discretion and denied him due process by refusing to hear evidence that he sought to present at the March 18, 2008 hearing. He also contends that the court’s refusal violated Probate Code section 1046. We are not persuaded.
Probate Code section 1046 provides: “The court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.”
“Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; Israni v. Superior Court (2001) 88 Cal.App.4th 621, 633, citing U.S. Const., 5th & 14th Amends., Cal. Const., art. I, § 7, & Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 339–342.) “The guarantee of procedural due process—a meaningful opportunity to be heard—is an aspect of the constitutional right of access to the courts for all persons, without regard to the type of relief sought.” (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 338–339.) “Although ‘due process’ encompasses a broad range of safeguards, in essence the concept guarantees a fundamentally fair decision-making process.” (People v. Ramos (1984) 37 Cal.3d 136, 153.)
In the present case, the probate court read Ronald’s moving papers and afforded him an opportunity to offer additional arguments and evidence at the hearing: “Good morning. I have read the papers. And unless you have something more to add, I’m prepared to rule.” The court thereafter allowed Ronald to submit verifications that he had failed to attach to his petitions, and denied his motion requesting that the judge recuse himself. The court then heard Ronald’s offer to present evidence in the form of respondent’s testimony as to who had drafted the three responses to his petitions. Ronald claimed that the responses, while bearing the heading of respondent (who is a licensed attorney), were actually prepared by Conrad. When asked to explain why such evidence would be relevant to the matters at issue, Ronald replied that respondent was forbidden under Estate of Getty (1983) 143 Cal.App.3d 455 (Getty) to assign such work to outside counsel. The court responded: “I don’t know what you’re arguing now. That is not what’s before me right now. What’s before me, these three petitions, which they have already been up to the appellate court, the Court has made rulings on these, and I’m denying them, each one of your motions. That’s the end of that.”
In Getty, the Court of Appeal upheld an order approving payment from an estate of the balance of an award of commissions and fees owed to the estate’s administrators and attorneys under the applicable Probate Code sections.
We agree with Ronald that the probate court was mistaken in stating that this court had already affirmed all of the issues addressed in Ronald’s three petitions. However, this fact does not alter our conclusion regarding the court’s orders.
All three responses reflect that they were prepared by respondent, not Conrad. Nevertheless, Ronald strenuously contends that the probate court “actively obstructed the gathering of evidence” and denied him a fair hearing by refusing to hear testimony on whether Conrad had actually prepared the written responses to the petitions.
Evidence Code section 350 provides: “No evidence is admissible except relevant evidence.” A trial court has wide discretion in determining whether proffered evidence is relevant under the principle that, “Except as otherwise provided by statute, all relevant evidence is admissible” (Id. at § 351), and “ ‘Relevant evidence’ . . . include[s] evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id. at § 210; see also San Diego Gas & Electric Co. v. Davey Tree Surgery Co. (1970) 11 Cal.App.3d 1096, 1103; People v. Warner (1969) 270 Cal.App.2d 900, 908.) Pursuant to Evidence Code section 352, a trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Ronald does not explain how evidence regarding who had actually prepared respondent’s responses is relevant to his demand for the immediate receipt of copies of Conrad’s billing statements. Ronald does not argue that Conrad has ever obtained compensation from the estate for “ghost writing” respondent’s pleadings. In any event, we note that if, in the future, respondent should submit a fee petition requesting Conrad be compensated for having prepared these responses, Ronald will then have the opportunity to contest the propriety of those charges. We find that the probate court did not abuse its discretion in refusing to hear the evidence Ronald sought to present. Nor did the court’s procedure amount to a violation Ronald’s right to due process. Due process principles do not require a court to hear evidence that is not relevant.
Respondent represents that he “has made voluntary disclosure of the invoices from litigation counsel with his previous petitions for authority to pay their fees” and that Ronald “has been (and will be) given notice of [respondent’s] fee petitions and he will have the opportunity to review and object to litigation counsel’s invoices when [respondent] files a petition for authority to pay those invoices.” Ronald does not contest the accuracy of these representations.
Proceeding to the merits of Ronald’s petition, we observe first that “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellant’s duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409.) Secondly, we note that every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
Ronald advances no authority for the proposition that heirs to an estate are entitled to receive contemporaneous copies of billing statements submitted by an estate administrator’s legal representative. In his reply brief, he claims his right to receive Conrad’s invoices is derived from “the fact that he is a real party in interest.” This contention, however, is again unsupported by any citation to legal authority. Accordingly, we conclude the probate court did not err in denying Ronald’s motion for receipt of Conrad’s billing statements.
Finally, Ronald complains that in the course of rendering our multiple opinions regarding this estate proceeding, we have prejudiced him by failing to provide “a substantive review into the primary cause of the ‘excessive amount of time this Estate has been open.’ ” He also requests that we “provide him with an Order disallowing Judge Dearman from hearing any matters” in this estate proceeding. We remind Ronald that, as an appellate court, the scope of our review is limited to the orders and rulings from which an appeal has been taken.
In closing, we again urge the parties to settle this estate proceeding as soon as possible.
The number of appeals Ronald has taken from this estate proceeding is excessive. We are compelled to refer him to Code of Civil Procedure section 391, subdivision (b)(1), which defines a vexatious litigant, in part, as a person who “In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been finally determined adversely to the person . . . .” We further note that “ ‘litigation’ ” for purposes of the vexatious litigant requirements “includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters.” (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219.)
DISPOSITION
The appeal from the order denying Ronald’s motion for the return of the $13,329.53 attorney fee award is dismissed as moot. The order denying Ronald’s motion for the immediate receipt of Conrad’s billing statements is affirmed.
We concur: Marchiano, P. J., Margulies, J.