Opinion
2d Civil No. B216328 Super. Ct. No. P077894
11-30-2010
Estate of ELIZABETH BELL, Deceased. SANDRA JONES, Petitioner and Appellant, v. GARLAND O. BELL, Objector and Respondent.
Sandra Jones, in pro per, Appellant.Garland Bell, in pro per, Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Elizabeth Bell died in December 2003. She is survived by her daughter, appellant Sandra Jones, and three sons: Garland, Donald and Duane Bell. Duane Bell and Garland Bell petitioned for probate of a will dated August 26, 1987. Sandra Jones petitioned for probate of a will dated February 17, 2003. As required by Probate Code section 8252 , the trial court first considered the question of whether the 2003 will effectively revoked the 1987 will. It declined, after a trial, to admit the 2003 will to probate, finding that the will had not been duly executed by Elizabeth Bell and that appellant "created and exercised undue influence in the preparation of the 2003 Will."
All statutory references are to the Probate Code unless otherwise stated.
Sandra Jones appeals. In an opening brief that is unintelligible, Jones appears to contend that the trial courts statement of decision is defective for a variety of reasons, including that it was not properly served, does not resolve all issues presented and does not explain the trial courts findings. She also seems to contend that she was denied due process because the trial on her petition was not held continuously, but was instead heard on five separate dates over a 21-month period. These contentions are not supported by relevant citations to the record or to legal authorities, nor are they accompanied by any discernable legal argument. We affirm.
Facts
Elizabeth Bell was born in August 1917 and died in December 2003. On February 17, 2003, appellant and Ms. Bell appeared in the offices of a law firm in Camarillo where Ms. Bell signed documents purporting to transfer all of her property to a trust of which she was the trustee and appellant was the first successor trustee. The documents also described how the trust was to be administered during her lifetime and after her death. On the same date, Ms. Bell signed what purports to be a last will and testament, leaving her entire estate to the trust.
On February 18, 2003, the superior court held a hearing on a petition, filed by Garland Bell and Duane Bell, to establish a conservatorship for Ms. Bell. Ms. Bell personally appeared at the hearing. The trial court judge asked her a series of questions which she was unable to answer. The trial court granted the petition and appointed Garland Bell and Duane Bell as her temporary conservators. It suspended all outstanding powers of attorney and took jurisdiction over the trust that had purportedly been established the previous day. The trial court appointed an attorney, Theresa McConville, to represent Ms. Bell and also found that Ms. Bell, "currently lacks capacity to give informed consent as to her medical treatment."
After their mothers death, the Bell children engaged in a bitter legal battle over her estate. Garland Bell and Duane Bell presented a 1987 will for probate. Appellant and Donald Bell presented the 2003 will for probate. After a five-day long trial, the court determined that the 2003 document should not be admitted to probate. Its statement of decision includes the findings that appellant "failed to meet her burden of proof on the issue of due execution of the 2003 Will. Also, [appellant] created and exercised undue influence in the preparation of the 2003 Will." The trial court noted that it relied heavily on the finding, made in the conservatorship proceeding, that Ms. Bell lacked the capacity to make healthcare decisions one day after she signed the 2003 will. It also placed great weight on the testimony of Ms. McConville, the attorney appointed to represent Ms. Bell in the conservatorship, who testified that, "in her opinion Ms. Bell lacked testamentary capacity at the time of the making of the 2003 Will," at the conservatorship hearing and "at all times thereafter."
Standard of Review
In reviewing the trial courts order declining to admit the 2003 will to probate, "we follow established rules of appellate review: We view factual matters most favorably to the prevailing party and in support of the judgment. We defer issues of credibility to the trier of fact. Additionally, we resolve all conflicts in the evidence in favor of the respondents. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926.) Our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)" (Estate of Auen (1994) 30 Cal.App.4th 300, 311; see also Estate of Burden (2007) 146 Cal.App.4th 1021, 1026; Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
The trial courts statement of decision is adequate if it states the "factual and legal basis" for the trial courts decision. (Code Civ. Proc., § 632.) As we have previously explained, "In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial courts determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining partys favor which would have the effect of countervailing or destroying other findings.
[Citations.] A failure to find on an immaterial issue is not error. [Citations.] The trial court need not discuss each question listed in a partys request; all that is required is an explanation of the factual and legal basis for the courts decision regarding the principal controverted issues at trial as are listed in the request. [Citations.]" (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)
Adequate Record on Appeal
It is appellants burden to affirmatively demonstrate error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Estate of Davis (1990) 219 Cal.App.3d 663, 670.) Thus, where the appellant fails to provide a complete reporters transcript of proceedings in the trial court, "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. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154, 178 Cal.Rptr. 652.)" (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Similarly, appellant has the obligation to include in the clerks transcript or appellants appendix every document from the trial court record that is necessary for our resolution of the appeal. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1143-1144; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102.) We "presume the record includes all matters material to a determination of points on appeal[,]" (County of Yolo v. Francis (1986) 179 Cal.App.3d 647, 650 fn. 2), and must "decline to find error on a silent record...." (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
Adequate Briefs on Appeal
California Rules of Court, rule 8.204 provides that each brief filed in the Court of Appeal must "support each point by argument and, if possible, by citation of authority;" and must support "any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) We are not required, as a reviewing court, to make an independent study of the record in search of error or of grounds that support appellants contentions on appeal. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) We will deem an argument to have been waived if it is not supported by with necessary citations to the trial court record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Contentions made in a brief must also be supported by adequate legal authority. We are " not required to discuss or consider points which are not argued or which are not supported by citations to authorities or the record. " (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979. See also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619 fn. 2.)
Discussion
Appellants opening brief is unintelligible. It appears to us to contain no citations to the trial court record, very few citations to pertinent legal authority and no discernable legal argument. Although we have no obligation to do so, in the interests of justice, we have reviewed the record provided by appellant in an effort to understand her contentions. We construe her opening brief to assert the following: (1) the trial courts statement of decision is inadequate because it does not resolve every material issue presented by her petition to admit the 2003 will to probate and does not give understandable reasons for the trial courts decision; (2) the proposed statement of decision was not properly served on all interested parties and the trial court therefore lacked jurisdiction to decide appellants petition; and (3) appellant was deprived of due process because her petition was not tried on consecutive days. None of these contentions has merit. To the extent appellant raises other issues or contentions in her opening brief, we deem them to have been waived because appellant did not present them in compliance with California Rule of Court rule 8.204. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
Appellants voluminous appendix does not include her petition to admit the 2003 will to probate. As a consequence, we cannot compare the trial courts statement of decision with the petition, to determine whether the trial court has resolved every material issue presented. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) We have, however, reviewed the record provided. It discloses no deficiencies in the statement of decision. The trial court explained that it declined to admit the 2003 will to probate because appellant did not carry her burden to prove the will was duly executed and because the evidence at trial demonstrated that appellant procured the will through undue influence. We are satisfied that these findings resolve the material issues presented. (Hellman v. La Cumbre Golf & Country Club, supra, 6 Cal.App.4th at p. 1230.)
We further conclude, based upon our review of the record provided, that the trial courts decision is supported by substantial evidence. It appears to us that the trial court credited the findings made by the trial court judge in the conservatorship proceeding and the testimony of Teresa McConville over the testimony of Joseph Lechman, the attorney who drafted the 2003 will, and the other witnesses presented by appellant. This credibility determination was well within the trial courts authority. "It is the exclusive function of the trial court to weigh the evidence, resolve conflicts and determine the credibility of witnesses...." (Estate of Desmond (1963) 223 Cal.App.2d 211, 215.) We will not reweigh the evidence or reconsider the trial courts credibility determinations. (In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 34; see also Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 452.) The findings and testimony on which the trial court relied constitute substantial evidence supporting the order under review.
We also reject appellants contention that the order must be reversed because respondent failed properly to serve the proposed statement of decision. We may assume for purposes of this argument that respondent Garland Bell did not comply with Code of Civil Procedure section 1031 when serving the proposed statement of decision. The trial court cured every conceivable defect in service by having the document personally served on appellant at the March 19, 2009 hearing. Twenty-eight days later, the trial court held another hearing at which it considered appellants objections to the proposed statement of decision. Every party received adequate notice and the trial court patiently considered every partys objections. Only after having done so did it sign the statement of decision. There was no deprivation of due process.
Nor did the trial court deprive appellant of due process by failing to hold the trial on consecutive days. The trial court has inherent authority to control its own calendar and docket. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267.) Where, as here, the trial court has a docket crowded with many matters that require its urgent attention, it has inherent authority to schedule trial dates as its limited time and resources permit.
Conclusion
The order denying appellants petition to admit the 2003 will to probate is affirmed. Costs to respondent.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Kent Kellegrew, Judge Superior Court County of Ventura
Sandra Jones, in pro per, Appellant.
Garland Bell, in pro per, Respondent.