Opinion
B230590
01-11-2012
ROBERT LEE SUTTON, JR., Plaintiff and Respondent, v. DELLA ROSHAWN RICHARDSON, Defendant and Appellant.
Della Roshawn Richardson, in pro per. Jonathan Greenspan and Eric R. Yamamoto, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BP108391)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Levanas, Judge. Affirmed.
Della Roshawn Richardson, in pro per.
Jonathan Greenspan and Eric R. Yamamoto, for Respondent.
After Robert Sutton, Sr. (Sutton Sr.) died intestate, his niece, Della Roshawn Richardson (appellant) was appointed the administrator of his estate. Over appellant's objection, Sutton Sr.'s estranged son, Robert Sutton, Jr. (respondent) caused appellant to be removed and himself appointed successor administrator of the estate. The trial court imposed a surcharge on appellant for her breach of fiduciary duties to the estate for her failure to file an accounting for the period she was administrator and her failure to account for certain estate assets. It is from the September 3, 2010 judgment imposing the surcharge that appellant appeals. We affirm.
Appellant filed a Supplemental Brief challenging the trial court's order removing her as administrator, which we deem a request for leave to file a supplemental brief. (Cal. Rules of Court, rule 8.200(a)(4).) Appellant has also filed a Motion to Augment Record on Appeal with various documents including a purported will executed by Sutton Sr., which appellant discovered after the Surcharge Order and which she has since submitted for probate. We deny the request for leave to file the Supplemental Brief (the gist of which is that appellant should be reinstated as a result of the will) because the Supplemental Brief does not elaborate on the argument relating to the sole issue on appeal: whether the Surcharge Order was proper. We also deny the Motion to Augment because none of the documents, including the purported will, was before the trial court at the time it made the Surcharge Order. (Boiler v. Signal Oil & Gas Co. (1964) 230 Cal.App.2d 648, 651, fn. 1 [matters occurring after judgment in the trial court are not properly part of the record on appeal]; In re Knapp's Estate (1950) 95 Cal.App.2d 536, 537 [denial of motion to augment with copy of will that was not before the trial court at time of judgment].)
FACTUAL AND PROCEDURAL BACKGROUND
Appellant referenced the alleged new will at oral argument, but we advised the parties we could not consider the document because it was not before the trial court when the issues on appeal were being considered.
A. Pretrial Proceedings
Sutton Sr. died intestate on December 26, 2007. Appellant retained attorney George Holloway and he filed a Petition for Letters of Special Administration and a Notice of Petition to Administer Estate on January 4, 2008. The petition valued the estate at $330,000, including a multi-unit building on West 70th Street in which Sutton Sr. lived (the 70th Street property) and personal property valued at $30,000. The petition identified Sutton Sr.'s survivors as respondent (son), appellant (great niece), Casandra Jones (niece) and Lewis Jackson (great nephew).
At a January 10, 2008 hearing on the Petition for Letters of Administration, Holloway stated that he had been representing Sutton Sr. in another matter and had been trying to locate Sutton Sr.'s son (respondent) "for years. Nobody seems to be able to locate him. Don't even know if he's living." Appellant was present at the hearing and did not dispute that Sutton Sr. had a son or that Holloway had been looking for the son on behalf of Sutton Sr. The court granted the Petition for Letters naming appellant as administrator, ordered a $30,000 bond and continued the matter.
Appellant was not present at the continued hearing on February 7th at which Holloway stated that Sutton Sr.'s son, respondent, was the only heir. The court granted appellant's Petition to Administer the Estate, ordered a status report and appointed a referee to appraise the estate's assets. According to a "Final" Inventory and Appraisal filed on September 17th (the Second Inventory), the estate had a value of $744,868.47, including a $110,268.47 account at Bank of America, a $109,000.00 account at Wells Fargo Bank, and the 70th Street property which was valued at $520,000.
Holloway filed a petition for an order to deposit the funds into two blocked accounts. At the hearing on that petition, appellant claimed she had not authorized the petition and that Holloway was "in cahoots with other individuals that tried to manipulate my dead uncle." Holloway stated that when appellant "discovered that there was an heir, [] then this thing kind of blew up." Holloway was relieved as counsel and the matter continued. At the continued hearing, attorney Deidra Stauff appeared on behalf of appellant but asked to be removed because she and appellant could not agree "on how to proceed in this case." The court referred the matter to the public administrator and continued it to January 2009.
At the trial of the issue whether respondent was Sutton Sr.'s son, Holloway testified that he filed the petition because appellant could not qualify for a bond.
On January 7, 2009, respondent filed (1) a Petition to Remove appellant as administrator on the grounds that, as Sutton Sr.'s only child and sole beneficiary, respondent had priority under Probate Code section 8461 and (2) a Petition for Successor Letters of Administration. Appellant opposed the petitions on the grounds that respondent was not Sutton Sr.'s son; she maintained that she was the sole beneficiary of Sutton Sr.'s estate. The issue of whether respondent was Sutton Sr.'s son was set for trial, but the trial date was later vacated and a trial setting conference was set for July 30th.
All future undesignated statutory references are to the Probate Code.
On June 16, 2009, appellant applied for an order to exhume Sutton Sr.'s body to get a DNA sample for comparison with respondent. The trial court denied the request, explaining that whether Sutton Sr. was respondent's biological father was irrelevant to whether respondent was Sutton Sr.'s intestate heir.
Meanwhile, on March 9, 2009, the trial court issued an Order to Show Cause as to why no status report, accounting or petition for final distribution had been filed. A few days before the April 6th OSC hearing, appellant filed a "Supplemental" Inventory and Appraisal (Third Inventory) according to which the estate included $101,493.27 in "cash" and real estate valued at $1 million; the attachment to the Third Inventory identified real property on Florence Ave. valued at $500,000 (the Florence property), which had not been included in the prior inventories. In a declaration in opposition to the OSC, appellant explained she had not filed an accounting because of the pending trial on respondent's petition. The OSC was continued to May 11th. A few days before that hearing appellant filed a Declaration Re: Final Accounting and/or Final Distribution. In it, she stated that only the $110,268.47 Bank of America account belonged to Sutton Sr.; a copy of a cashier's check for $101,493.27 was attached to the declaration; appellant explained this check represented the balance of the funds in the Bank of America account. Appellant maintained that the $109,000 Wells Fargo Bank account was appellant's personal account. Appellant requested an appraiser be appointed to appraise the Florence property. The OSC was continued to June and then to August.
At the trial setting conference on July 30th, appellant's third attorney, Donald Iwuchuku, requested that he be relieved because appellant refused to give him the information he needed to prepare the court-ordered Status Report. Appellant accused Iwuchuku of conspiring against her with respondent's counsel. She explained that she obtained the $101,493.27 cashier's check, a copy of which was attached to her declaration, but had not deposited it because "the accounts in the estate have been in jeopardy by all counsels from all sides. The case should have been closed long ago, but the reason why it's still open is because both sides need to procrastinate and try to swindle and manipulate the accounts." Regarding the account at Wells Fargo Bank, appellant stated that it was opened in December 2007 in both her name and Sutton Sr.'s name; the funds used to open the account were "from the estate [Sutton Sr.] gave" her. Appellant did not know why Sutton Sr. had opened the account in both of their names. Appellant explained, "He did bank transactions and not me. I just went in and followed the orders." The court ordered appellant to cooperate with her attorney to obtain records from Bank of America and Wells Fargo Bank, including signing any necessary releases. The matter was continued to September 11th for receipt of the bank records; meanwhile, appellant was ordered to deposit the $101,493.27 cashier's check with the Superior Court Finance Office.
After several continuances, on August 24th, Iwuchuku informed the court that appellant had not signed the release of confidential information and she had not deposited the cashier's check with the Superior Court Finance Office. The court ordered appellant to sign the release and continued the matter for another OSC on why no status report had been filed. Trial of whether respondent was Sutton Sr.'s son (the factual basis of respondent's petitions to remove appellant and appoint respondent as administrator) was set for November 23rd.
B. The Trial
In his Separate Trial Statement, respondent explained that his mother, Dorothy Williams, married Sutton Sr. on September 11, 1955; the marriage was annulled on October 29, 1962; respondent was born on May 30, 1965. Respondent introduced his birth certificate into evidence, which identifies Sutton Sr. as his father and is signed by respondent's mother as "Mrs. Dorothy L. Sutton." Respondent, his mother, his half-brother Le'Count Tatum, Sutton Sr.'s friend Lee Hayes, attorney George Holloway and appellant's son testified. Respondent testified that Sutton Sr. was his father with whom he lived when he was a baby. After Williams and Sutton Sr. separated when respondent was one or two years old, Sutton Sr. continued to contribute to respondent's support and respondent lived with Sutton Sr. "off and on during holidays and weekends and during the summer as a child." Sutton Sr. paid for respondent to go to private school during the fourth and fifth grades and helped respondent with money during college. Respondent became estranged from Sutton Sr. after an argument over respondent's life choices. Sutton Sr. occasionally called respondent, but the calls usually resulted in an argument. Respondent last saw Sutton Sr. in 2003. Some four or five months after Sutton Sr. died, respondent learned of his death from some "genealogy people."
Respondent's mother, Dorothy Williams, testified that she was married to Sutton Sr. in the 70's or 80's and lived with him for three or four years, including during the time respondent was born. After Williams and Sutton Sr. separated, respondent continued to see Sutton Sr., who assisted in respondent's support. When Sutton Sr. gave money to Williams to help her purchase a condominium in Pomona, Sutton Sr. insisted that respondent's name be added to the title along with Williams' and her other son's.
Tatum recalled that until he was 12 years old, he and his older brother lived with their mother and Sutton Sr., their step-father. Respondent, Tatum's younger half-brother, also lived with them. From 1992 until 1994, Tatum operated a business out of property on Florence which he rented from Sutton Sr. Sutton Sr. frequently talked to Tatum about respondent. Sutton Sr. told Tatum that he intended to leave all of his property to respondent when he died.
Lee Hayes became acquainted with Sutton Sr. when Hayes and his mother purchased the Florence property from Sutton Sr. Sutton Sr. told Hayes that if anything ever happened to Sutton Sr., the monthly payments should go to respondent. On one occasion, Hayes tried to help Sutton Sr. locate respondent by driving to a condominium in Pomona where Sutton Sr. thought respondent lived. They asked the tenants to ask respondent to call his father, Sutton Sr.
Holloway testified that he first represented Sutton Sr. in the probate of his brother, Deservee Sutton. Sutton Sr. told Holloway that he had a son and a niece. Shortly before he died, Sutton Sr. asked Holloway to prepare a will for him but Sutton Sr. died before that was ever done. After Sutton Sr. died, appellant contacted Holloway to represent the estate. Holloway prepared and filed a petition for probate; the petition identified respondent as Sutton Sr.'s son, appellant as his great niece, as well as other relatives. Holloway was not sure whether or not appellant signed the petition. When Holloway opened the probate he did not include the Florence property because he did not know about it. By the time he learned about it, he was no longer on the case. Holloway received checks from Hayes for the money Hayes owed on the Florence property; Holloway gave the checks to appellant. After Holloway was relieved from representing appellant, he received six or seven checks from Hayes, which he gave to appellant's new attorney, Iwuchuku. Holloway told Iwuchuku to instruct Hayes to send all future checks to Iwuchuku, but Hayes had sent two more checks to Holloway which Holloway was keeping until the court decided what to do.
Appellant's son, Tramelle Drinkard, testified that Sutton Sr. never mentioned having a son named Robert Lee Sutton. Drinkard never saw respondent.
C. The Trial Court's Findings and Order Removing Appellant As Administrator
The trial court found that respondent was Sutton Sr.'s son; as such, respondent had priority to administer the estate. Accordingly, it removed appellant as administrator and appointed respondent (the November 23rd Order).
Appellant filed a Petition for a Second Trial. At a hearing on November 1, 2010, the trial court treated the Petition for a Second Trial as a new trial motion and denied it on the grounds: (1) the motion was untimely and (2) it failed to set forth new or different facts. Appellant did not appeal from the November 23rd Order.
D. The Surcharge Order
In addition to removing appellant and appointing respondent as administrator of the estate, the November 23rd Order also required appellant to provide respondent's counsel with a list of all monies received and disbursed by the estate (i.e. an informal accounting), and to turn over all bank records, by December 31st.
By the time of the next hearing on February 4th, appellant had not filed an accounting or turned over the bank records. Appellant was ordered to file an informal accounting for the period beginning February 29, 2008 (the day appellant was appointed) and ending November 23, 2009 (the day she was removed), on or before April 2, 2010. The court stated its intention to set the matter for an OSC Re Surcharge if the accounting was not timely filed.
Appellant did not file the court-ordered accounting and the court issued the OSC Re Surcharge. The bonding company informed the court that it did not intend to oppose the surcharge. At the August 13th hearing on the OSC Re Surcharge, respondent introduced Wells Fargo Bank records for the relevant period. Among other withdrawals from that account, $83,344.63 was transferred into a checking account not affiliated with the estate. Although appellant maintained that she used the money to maintain the property, the court concluded that appellant willfully failed in her fiduciary duty to make an adequate accounting for the period during which she was the representative of the estate. The court surcharged appellant for all of the unaccounted for transfers out of the Wells Fargo Bank account, a total of $119,861.57. The written Order and Judgment on Trial of Accounting and Surcharge on Bond was filed on September 3, 2010 (the Surcharge Order). Notice of Entry of Judgment was served on September 10, 2010.
On February 2, 2011, judgment was entered against the bonding company in the full amount of the $30,000 bond. Notice of Entry of Judgment against the bonding company was filed on February 9, 2011.
On December 10, 2010, appellant filed a Motion to Vacate the Surcharge Order. Following a hearing on January 13, 2011, the trial court found the motion timely, but denied it for the following reasons: (1) it was not accompanied by a memorandum of points and authorities as required by California Rules of Court, rule 3.1112(a); (2) it did not present new or different facts as required by Code of Civil Procedure section 475; (3) appellant did not show excusable neglect; and (4) it did not include an affidavit from prior counsel attesting to his excusable neglect or state what specific documents were omitted from the file provided by counsel.
On January 20, 2011, appellant filed a timely notice of appeal from the Surcharge Order. (Cal. Rules of Court, rule 8.108(c)(1) [motion to vacate extends time to appeal to 30 days after the motion to vacate is denied].)
DISCUSSION
Appellant contends it was error to surcharge her $119,861.57 for failing to file an accounting. As we understand her argument, it is twofold: (1) appellant was entitled to the subject funds because, since respondent did not establish he was Sutton Sr.'s son, appellant was Sutton Sr.'s sole heir; and (2) the failure to file an accounting was caused by appellant's attorneys' malpractice and not by any act or omission of appellant's. Neither argument is persuasive.
A. Standard of Review
The standard of review of a surcharge is whether, viewing the record as a whole, there is substantial evidence to support the surcharge. (In re Estate of Fain (1999) 75 Cal.App.4th 973, 987.) "Substantial evidence" is "evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) "Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence." (Ibid.) Issues of credibility are for the trial court and we resolve all conflicts in the evidence in favor of respondent. (Estate of Auen (1994) 30 Cal.App.4th 300, 311.) If there is substantial evidence, "it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.)
B. There Was Substantial Evidence That Respondent Was Sutton Sr.'s Son
Appellant argues the surcharge should be reversed because it was not supported by sufficient evidence that respondent was Sutton Sr.'s son. We disagree.
Succession to estates is purely a matter of statutory regulation. (Estate of Griswold (2001) 25 Cal.4th 904, 924.) A decedent's child has priority over a niece to be appointed the administrator of the decedent's estate. (Prob. Code, § 8461.) For purposes of determining intestate succession, "The relationship of parent and child exists between a person and the person's natural parents, regardless of the marital status of the natural parents." (Prob. Code, § 6450, subd. (a).) Probate Code section 6453 governs the manner in which a "natural parent" is determined. Subdivision (b)(2) of Probate Code section 6453 provides that a parent and child relationship can be established by an action under subdivision (c) of section 7630 of the Family Code [action to determine existence of father and child relationship] provided that that "[p]aternity is established by clear and convincing evidence that the father has openly held out the child as his own." (Prob. Code, § 6453, subd. (b)(2).)
Here, the court found "by clear and convincing evidence, the proof has been demonstrated that [respondent] is the son of [Sutton Sr.] It is clear and credible evidence that was presented today from multiple witnesses regarding the issue that he is the son; that [Sutton Sr.] acknowledged him as his son, provided for his support as he was growing up." From this statement, it is clear that the trial court found Sutton Sr. was respondent's natural parent under section 6453, subdivision (b)(2). Substantial evidence supports the finding. This includes testimony by Williams, Tatum, Hayes, Holloway and respondent that Sutton Sr. held respondent out as his son and assisted in respondent's financial support. Even after they became estranged Sutton Sr. held out respondent as his son to other people and expressed his intention to leave his property to respondent. Sutton Sr. gave money to Williams to help her buy a condominium in Pomona on the condition that respondent's name be put on the title. And in recent years, Sutton Sr. asked the tenants at a Pomona condominium to help him get in touch with his son. This constitutes substantial evidence to support the trial court's finding that respondent was Sutton Sr.'s son.
C. It Was Not Error to Surcharge Appellant
Appellant's second grounds for reversing the surcharge - that it was her attorneys' fault and not her fault that no accounting was filed - is not supported by the facts. It is clear from the record that appellant's actions prevented her attorneys from filing a timely accounting. For months she refused to sign the release of information that would have allowed her attorney to obtain the estate's bank records. Even after appellant began representing herself she did not file an accounting. After appellant was removed and respondent appointed as administrator, respondent obtained bank records that showed appellant had withdrawn $119,861.57 from an estate account; appellant refused to account for these funds. These facts support the trial court's imposition of a surcharge in the amount of the unaccounted for funds.
Appellant's additional arguments are not supported by adequate citation to the record or legal authority. As such, we treat these arguments as waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; In re Marriage of Walker (1989) 216 Cal.App.3d 644, 653.) Appellant's argument that the trial court was biased against her is also not supported by the record. Moreover, there is no indication that appellant filed a motion under Code of Civil Procedure sections 170.1 or 170.6. Even if she did file a motion for recusal, her failure to seek writ review of the determination forfeits any statutory claim. (Code Civ. Proc., § 170.3, subd. (d) [determination of disqualification motion is not an appealable order and may be reviewed only by writ of mandate]; People v. Freeman (2010) 47 Cal.4th 993, 1000.)
--------
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.