Opinion
A152430
07-20-2018
GILBERT E. ATENCIO, SR., Plaintiff and Appellant, v. ANTHONY REIMANN, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. P1201210)
Gilbert E. Atencio, Sr., acting in propria persona, appeals from an order dismissing his petition and amended petition to compel an accounting. Atencio has not demonstrated any error, so we affirm.
BACKGROUND
The proceedings in this matter concern the Margaret McGee Liebscher Family Living Trust. Liebscher died in 2010. Atencio, who asserts he is a trust beneficiary, filed a petition to compel an accounting in November 2016 and an amended petition in February 2017. Following a hearing, on August 3, 2017, the court dismissed both petitions with prejudice. Its written order explains: "3. Mr. Atencio, Sr. does not have standing to pursue the requested relief. [¶] 4. Under Probate Code § 259 Gilbert Atencio, Sr. is deemed to have predeceased the decedent Margaret McGee Liebscher. [¶] 5. Gilbert Atencio, Sr. has been found liable by clear and convincing evidence for financial elder abuse against Margaret McGee Liebscher[,] an elder and dependent adult in the Conservatorship of the Person and Estate of Margaret McGee Liebscher, Contra Costa County Case #P07-00167. [¶] 6. Gilbert Atencio, Sr. has been found to have acted in bad faith. [¶] 7. Gilbert Atencio, Sr. has been found to have acted in a reckless, oppressive, fraudulent and malicious manner in the commission of this financial elder abuse against Margaret McGee Liebscher. [¶] 8. At the time the acts of financial elder abuse occurred, Margaret McGee Liebscher was substantially unable to [manage] her financial resources or to resist fraud or undue influence."
Atencio timely appealed from the order.
DISCUSSION
Atencio's principal claims in the underlying case seem to be that the trustee improperly distributed and misappropriated trust funds and property; the trial court erroneously entered judgment against Atencio in a prior action concerning the Liebscher trust; and that Atencio, as a trust beneficiary, has a right to an accounting of trust assets. On appeal, as we understand his arguments, Atencio asserts the court abused its discretion when it found he lacked standing "because his siblings had 'disowned him' " and asks this court to reverse the order of dismissal and hold that he "was not deemed to have predeceased the decedent under Probate Code § 259." None of his contentions are supported with citation to pertinent legal authority or intelligible legal argument. Equally lacking are a transcript of the dismissal hearing and appropriate citation to the written record of the proceedings in the trial court. Having nonetheless given careful and thorough consideration to Atencio's briefs and to the limited record provided to this court, we are compelled to agree with respondent that these defects are fatal to the appeal.
"[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal." (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) "As a general rule, 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation 'is furnished on a particular point, the court may treat it as waived.' " (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) We are sympathetic to the fact that Atencio is proceeding without the benefit of an attorney, but his status as a self-represented litigant does not exempt him from the rules of appellate procedure or relieve him of the obligation to present coherent argument supported by the record and legal authority. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; see also Conservatorship of Sides (1989) 211 Cal.App.3d 1086, 1091-1093 [no due process right to appointed counsel in conservatorship proceeding].)
Faced with the level of inadequacy apparent in Atencio's briefing and a record insufficient to permit meaningful review, we find this case to be one that requires application of the waiver rule. We therefore deem his assertions on appeal to have been abandoned. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; see also Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102; Strutt v. Ontario Savings & Loan Assn. (1972) 28 Cal.App.3d 866, 873; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-770; § 711, pp. 780-781.)
DISPOSITION
The appeal is dismissed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.