Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Ct. No. BP086023, Aviva K. Bobb, Judge.
Law Office of Andrew Echavarria and Andrew Echavarria for Defendant and Appellant.
Loeb & Loeb, Adam F. Streisand, and Nicholas J. Van Brunt, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
In this consolidated appeal, Daniel G. Drommerhausen III challenges a number of probate court orders entered against him and in favor of Debra D. Hutchings, as the sole successor trustee of the Drommerhausen Family Trust. The challenged orders were entered: on November 5, 2008, (surcharging Mr. Drommerhausen over $2 million); on November 13, 2008 (denying an exemption from enforcement of a money judgment regarding a brokerage account at Crowell Weedon & Company); and on December 16, 2008 (denying a homestead exemption and an exemption claim as to certain First Federal Bank accounts). We affirm all the orders under review.
II. BACKGROUND
Daniel Drommerhausen II and Marjorie Drommerhausen, who are both deceased, were the parents of Mr. Drommerhausen and the trustee. The parents created the trust in December 1995. Mr. Drommerhausen and the trustee were named as successor co-trustees and are equal beneficiaries under the trust. On June 3, 2004, the probate court granted an ex parte application suspending Mr. Drommerhausen’s powers and enjoining him from taking further actions with respect to the trust property. The trustee is the executor of the parents’ wills and the sole successor trustee of the trust.
On December 1, 2004, the trustee filed three petitions under Probate Code section 850 to confirm that the real properties and accounts belong either to the estates or the trust. The parties stipulated that the matter would be submitted to Retired Judge Eli Chernow for trial by reference pursuant to Code of Civil Procedure section 638. The probate court entered judgment following the referee’s recommendations as to the ownership of the disputed properties for the estates and trust. The section 850 orders also required Mr. Drommerhausen to file accountings relating to the real properties, rents issues and profits and all bank and brokerage accounts which were determined to be owned by the estates and trusts. The probate court also entered monetary judgments against Mr. Drommerhausen in favor of the estates and trusts. On April 30, 2007, we affirmed the probate court’s order regarding ownership of the property in an unpublished opinion. (Hutchings v. Drommerhausen (Apr. 30, 2007, B191211) [nonpub. opn.].)
All further statutory references are to the Probate Code unless otherwise indicated.
On October 9, 2007, Mr. Drommerhausen filed and served his accounting for the period of January 1, 2003, through June 11, 2004. The trustee filed objections to the first accounting on November 5, 2007. The probate court conducted a trial on the first accounting. At the trial, David D. Hutchings, who is a certified public accountant, was called to testify about the trust. Mr. Hutchings is the trustee’s husband. Mr. Hutchings testified as the trust’s accountant. Mr. Hutchings prepared two schedules for the trial, exhibits Nos. 637 and 638A. Mr. Drommerhausen cross-examined Mr. Hutchings. At the trial, Mr. Drommerhausen testified that he was entitled to $7 million for services he had performed while his parents were still alive. As a result, he had seized assets belonging to the trust. On November 5, 2008, the probate court entered an order surcharging Mr. Drommerhausen in the amount of $2,290,798.41 plus interest at the rate of 10 percent per annum from June 11, 2004. Mr. Drommershausen filed a notice of appeal on November 25, 2008 from the surcharge order as authorized by section 1300, subdivision (g).
On April 29, 2008, the probate court issued writs of execution in favor of the trusts on the judgments entered in favor of the trusts and estates. The Los Angeles County Sheriff levied upon the Crowell Weedon brokerage account and real properties owned by Mr. Drommerhausen. On August 14, 2008, Mr. Drommerhausen filed a notice of claim of exemption regarding the Crowell Weedon account. On August 18, 2008, the trustee filed opposition to the exemption claim. On September 26, 2008, Mr. Drommerhausen filed a motion for an order that any alleged debt was exempt from enforcement pursuant to Code of Civil Procedure section 708.120, subdivision (d). Mr. Drommerhausen asserted that the trust owed him over $6 million for work and services and for loan payments he made on behalf of the trust and estates. According to Mr. Drommerhausen, any debt he owed was exempt from enforcement of a money judgment.
On October 21, 2008, the probate court denied the Crowell Weedon exemption claim. The probate court found that Mr. Drommerhausen failed to meet his burden of proof establishing an exemption. The levying officer was ordered to release the funds to the judgment creditor. The probate court entered an order denying the exemption claim on November 13, 2008. We deem timely Mr. Drommerhausen’s premature notice of appeal filed on October 29, 2008, and amended on October 30, 2008. (See Cal. Rules of Court, rule 8.104(e)(2); In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1262, fn. 4; Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 814; see also Code Civ. Proc., § 703.600 [order granting or denying an exemption claim is appealable]; Schwartzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 626.)
On October 7, 2008, the sheriff levied on several bank accounts held in Mr. Drommerhausen’s name at First Federal Bank. On October 9, 2008, Mr. Drommerhausen filed notices of exemption claims regarding the First Federal Bank accounts and four real properties. On October 29, 2008, the trustee filed notices of opposition to claims of exemption regarding the First Federal Bank accounts and four real properties. On November 25, 2008, the probate court conducted a hearing on an order to show cause re sale of dwelling and claim of exemption in reference to the First Federal Bank accounts. The probate court found that Mr. Drommerhausen did not live nor had he ever lived at any of the dwellings; so, he was not entitled to a homestead exemption. The probate court also found that Mr. Drommerhausen had not met his burden of showing that the bank accounts were exempt. On December 16, 2008, the probate court entered an order determining that Mr. Drommerhausen did not dwell on the subject property and, therefore, was not entitled to a homestead exemption. Also on December 16, 2008, the probate court entered an order denying an exemption claim as to the First Federal Bank accounts. On December 24, 2008, Mr. Drommerhausen filed a timely notice of appeal from the December 16, 2008 orders.
III. DISCUSSION
A. Mr. Hutchings’ Testimony
Mr. Drommerhausen’s only challenge to the surcharge order relates to the admission of evidence. He has not otherwise challenged the merits of the order. Mr. Drommerhausen contends the probate court abused its discretion by allowing the trustee’s husband, Mr. Hutchings, to testify in the trial of the first accounting. Any ruling by the probate court admitting or denying evidence is reviewed for an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004; People v. Waidla (2000) 22 Cal.4th 690, 725.) A party seeking a reversal from an evidentiary ruling on admission of evidence must show that the ruling was arbitrary, capricious or so patently absurd that a miscarriage of justice occurred. (People v. Hovarter, supra, 44 Cal.4th at p. 1004; People v. Rundle (2008) 43 Cal.4th 76, 151, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421.) For the reasons stated below, the arguments raised by Mr. Drommerhausen, fail to establish that the probate court’s exercise of its discretion regarding Mr. Hutchings testimony as a certified public account must be reversed. (People v. Hovarter, supra, 44 Cal.4th at p. 1004; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.)
First, Mr. Drommerhausen’s arguments are not supported by citation to any authority; the failure to do so is sufficient to deem the contentions without foundation and abandoned. (In re Phoenix H. (2009) 47 Cal.4th 835, 845; In re Sade C. (1996) 13 Cal.4th 952, 994; Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 984, fn. 1.) Second, there is no merit to any of his arguments regarding Mr. Hutchings’ testimony. Mr. Drommerhausen asserts that the probate court should have sustained his objection and refused to allow Mr. Hutchings to testify. This is because Mr. Hutchings was paid approximately $1 million for his accounting services and he provided no receipts for the services he allegedly performed. Mr. Drommerhausen further asserts the order surcharging him should be reversed because Mr. Hutchings, as the trustee’s husband, was improperly allowed to testify as an expert and non-expert witness. According to Mr. Drommerhausen, the witness should not have been allowed to render his personal observations and opinions in determining the surcharge amount. As a result, he argues the probate court should have sustained his evidentiary objections.
No abuse of discretion occurred. The record does not support the contention that Mr. Hutchings’ testimony was expert opinion. Rather, the probate court allowed Mr. Hutchings to testify about the preparation of the exhibits Nos. 637 and 638A. He testified that the exhibits were compilations of data. The data was admitted into evidence by the court in the first accounting which was being tried. The probate court noted that Mr. Hutchings’ testimony was being received for the limited purpose of showing organization. The probate court specifically stated, “I’m not receiving his conclusion with respect to the surcharge.” Under the circumstances, no abuse of discretion occurred when the probate court admitted the simple arithmetic summaries which did not require expert testimony to be admissible. (Maggio v. United Farm Workers (1991) 227 Cal.App.3d 847, 871, fn. 18; Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711, 716; see also Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 418-419.)
There is also no merit to the arguments that Mr. Hutchings was biased due to his marital status or pecuniary interest. Neither his personal relationship nor his pecuniary interest disqualified him to testify as a witness. (Evid. Code § 700; Ripperdan v. Weldy (1906) 149 Cal. 667, 672; Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347; Lawson v. Town & County Shops, Inc. (1958) 159 Cal.App.2d 196, 200.) Rather, bias merely raises issues of weight and credibility, which are properly resolved by the fact finder. (Evid. Code, §§ 700, 780; Ripperdan v. Weldy, supra, 149 Cal. at p. 672; Lawson v. Town & Country Shops, Inc., supra, 159 Cal.App.2d at p. 200.) Even if error is established, reversal is not warranted because Mr. Drommerhausen has failed to show a more favorable outcome would have been more probable in the absence of the error. (Cal.Const., art. VI, § 13; Evid. Code, § 353; Code Civ. Proc., § 475; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.)
Mr. Drommerhausen also claims that the trustee breached her fiduciary duties by paying her husband over a million dollars in violation of the trust terms and section 16004, subdivision (a). This argument is not properly raised in this appeal where there is no order approving or disapproving any of the current trustee’s actions. The order appealed from related to Mr. Drommerhausen’s accounting while he was serving as a trustee. To the extent Mr. Drommerhausen is not satisfied with the management of the trust, his remedy is to make the appropriate petitions or motions in the probate court. (See § 17200; In re Estate of Bowles (2008) 169 Cal.App.4th 684, 695-696; Schwartz v. Labow (2008) 164 Cal.App.4th 417, 426-428; Estate of Sigourney (2001) 93 Cal.App.4th 593, 605.)
B. The Exemption Claims
On appeal, Mr. Drommerhausen asserts that the probate court erred in denying his exemption claims for his bank accounts. A claimant such as Mr. Drommerhausen may make an exemption claim for his personal property with the levying officer within 10 days of notice of levy. (Code Civ. Proc., § 703.520, subd. (a).) The exemption claim must include among other things “citation of the provision of this chapter or other statute” upon which the claim is based. (Code Civ. Proc., § 703.520, subd. (b)(5).) Under Code of Civil Procedure section 703.580, subdivision (b), Mr. Drommerhausen (as the exemption claimant) had the burden of proving that an exemption exists. Code of Civil Procedure section 703.580 allows a judgment debtor to make an exemption claim with a probate court as follows: “(a) The claim of exemption and notice of opposition to the claim of exemption constitute the pleadings, subject to the power of the court to permit amendments in the interest of justice. [¶] (b) At a hearing under this section, the exemption claimant has the burden of proof. [¶](c) The claim of exemption is deemed controverted by the notice of opposition to the claim of exemption and both shall be received in evidence. If no other evidence is offered, the court, if satisfied that sufficient facts are shown by the claim of exemption (including the financial statement if one is required) and the notice of opposition, may make its determination thereon. If not satisfied, the court shall order the hearing continued for the production of other evidence, oral or documentary. [¶] (d) At the conclusion of the hearing, the court shall determine by order whether or not the property is exempt in whole or in part. Subject to Section 703.600, the order is determinative of the right of the judgment creditor to apply the property to the satisfaction of the judgment. No findings are required in a proceeding under this section.” We review the probate court’s denial of the exemption claim for substantial evidence. (Schwartzman v. Wilshinsky, supra, 50 Cal.App.4th at p. 626.)
In the probate court, Mr. Drommerhausen contended that he was entitled to a homestead exemption. (Code Civ. Proc., § 704.710 et seq.) Mr. Drommerhausen is deemed to have abandoned the issue by failing to raise any points about a homestead exemption in his opening brief on appeal. (Fidelity Nat. Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847, fn. 11; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
The Legislature has identified a number of specific exempt properties or interests in Code of Civil Procedure section 704.010 through 704.210. Mr. Drommerhausen did not cite to any specific exemption claim under these statutes. Instead, here, (as he did in the probate court), Mr. Drommerhausen relies on Code of Civil Procedure section 708.120, subdivision (d) which provides in part, “The judgment debtor may claim that all or any portion of the property or debt is exempt from enforcement of a money judgment by application to the court on noticed motion filed with the court....” However, this statute is a procedural mechanism for making an exemption claim when property in the possession of a third-party. Code of Civil Procedure section 708.120, subdivision (d) does not provide a substantive basis for an exemption claim. Indeed, as the probate court pointed out, Mr. Drommerhausen cited no statutory basis for an exemption claim for any of his bank accounts. Furthermore, the probate court properly rejected Mr. Drommerhausen’s claims that he was entitled to an exemption for: work and services he performed from 1995 to 2007 ($6,451,457.00); credits for sales and loans payments ($1,169,924.83); and rental income he has not received as a trust beneficiary. Mr. Drommerhausen is asserting that he was not given offsets against the judgment. But, these arguments do not support an exemption claim. Because Mr. Drommerhausen never supported his exemption claim with any pertinent statute or evidentiary basis, the probate court’s ruling must be affirmed.
IV. DISPOSITION
All orders under review are affirmed. Debra D. Hutchings, as the sole successor trustee of the Drommerhausen Family Trust, is awarded her costs on appeal from Daniel G. Drommerhausen III.
We concur: ARMSTRONG, J., KRIEGLER, J.