Opinion
G055462
09-13-2019
TRACEY L. BRONSON, as Trustee, etc., et al., Plaintiffs and Respondents, v. CASSANDRA D. JONES, Defendant and Appellant.
Cassandra D. Jones, in pro. per., for Defendant and Appellant. Murtaugh Treglia Stern & Deily, John P. Deily, James C. Harvey and Thomas N. Fay for Plaintiff and Respondent Tracey L. Bronson. Law Offices of Steven A. Ehrlich, Steven A. Ehrlich; Faulkner Post Law Firm and Rick Faulkner for Plaintiff and Respondent Judith A. Okonski.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. A218268) OPINION Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed as modified. Cassandra D. Jones, in pro. per., for Defendant and Appellant. Murtaugh Treglia Stern & Deily, John P. Deily, James C. Harvey and Thomas N. Fay for Plaintiff and Respondent Tracey L. Bronson. Law Offices of Steven A. Ehrlich, Steven A. Ehrlich; Faulkner Post Law Firm and Rick Faulkner for Plaintiff and Respondent Judith A. Okonski.
* * *
INTRODUCTION
Cassandra D. Jones, a beneficiary and former trustee of trusts established by her mother, challenges the trial court's order surcharging her with attorney fees and other charges based on her bad faith as trustee and in objecting to the successor trustees' reports. As explained post, there was no admissible evidence supporting one component of the surcharged amounts. With that exception, the order is affirmed.
We will refer to Cassandra D. Jones as Jones, and to other members of the Jones family by full name.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Marie Hicks Jones was the mother of Jones, Louis C. Jones, and Tracey L. Bronson. Marie Hicks Jones established three trusts: A revocable trust dated December 19, 1995 (the Main Trust) and two grantor retained income trusts (GRIT 1 and GRIT 2, respectively). Jones was later appointed as the successor trustee of the three trusts, as well as the conservator of the estate and person of Marie Hicks Jones. Ultimately, the court removed Jones as the successor trustee of all three trusts.
I.
THE MAIN TRUST
The Main Trust consisted primarily of commercial and residential real property. Jones filed a petition to approve her reports and accounts during her trusteeship period. Objections were filed to her petition, and she filed opposition to those objections. The trial court refused to approve Jones's reports and accounts for the period before she was removed as trustee, surcharged her for penalties and interest imposed on the trusts and for her willful failure to make certain payments, found her opposition to the objections to her reports had been filed without reasonable cause and in bad faith, and ordered her to pay the objectors' attorney fees and costs attributable to her opposition. Jones filed an appeal from that order; a panel of this court affirmed the order. (Jones v. Jones (Mar. 7, 2012, G043185) [nonpub. opn.].)
Judith A. Okonski was appointed as successor trustee of the Main Trust to replace Jones. Jones objected to Okonski's petition to approve her first account current and report. The court approved the first account current and report, found Jones's objections lacked reasonable cause and were made in bad faith, and ordered Okonski's attorney fees and costs attributable to the objections to be paid from Jones's share of the trust estate.
Jones also objected to Okonski's petition to approve the second account current and report. Again, the court approved the second account current and report, found the objections lacked reasonable cause and were made in bad faith, and ordered that Jones pay Okonski's attorney fees and costs attributable to the objections from her share of the trust estate. And again, a panel of this court affirmed the trial court's order on appeal. (Okonski v. Jones (Mar. 5, 2015, G048475) [nonpub. opn.].)
In April 2015, Okonski filed a petition to approve the trustee's third account current and report (Main Trust petition). Jones filed objections to the Main Trust petition in June 2015.
II.
GRIT 1 AND GRIT 2
Bronson and Louis C. Jones were appointed as successor cotrustees of GRIT 1 and GRIT 2. GRIT 1 owned a developed piece of residential real property, and GRIT 2 owned an adjacent undeveloped piece of real property. Those two parcels were sold for a combined price of $1.75 million. Bronson contended that Jones's "spurious" objections to the GRIT cotrustees' attempts to sell the properties resulted in a loss of value to the properties, which required the imposition of a surcharge totaling over $216,000 against Jones.
In June 2013, the trial court approved Bronson's first account current and report on GRIT 1. The court authorized the distribution of one-third of the corpus of the trust's estate to Bronson, and one-third to Louis C. Jones's estate, as provided by the trust's language. The court further ordered that Jones's one-third share of the trust estate should be held by Bronson and "set aside for distribution to . . . Jones, Trust beneficiary, subject to the finalization of the amount of her distributable share and possible claims against it." The court "reserve[d] jurisdiction on the issue of the liability of . . . Jones for breaches of trust, the exact grounds, reasons and amounts to be reserved for future court hearing and court determination at the time of the hearing on the Successor Trustee's next accounting."
Louis C. Jones died during the pendency of the trust proceedings. Bronson continued as the sole trustee of GRIT 1 and GRIT 2.
The trial court also approved Bronson's first account current and report on GRIT 2 and overruled Jones's objections to it. The court authorized Bronson to distribute the entire corpus of GRIT 2 to Okonski, as the trustee of the Main Trust, after paying certain fees and maintaining a necessary reserve. Regarding surcharges, the court ordered: "The Court reserves jurisdiction on the issue of the liability of . . . Jones for breaches of trust, the exact grounds, reasons and amounts to be reserved for future court hearing and court determination at the time of the hearing on the Successor Trustee's next accounting."
In June 2015, Bronson filed petitions to approve the second and final accounts current and reports for GRIT 1 and GRIT 2, to approve distribution of the remaining trust property, and for surcharges to be imposed against Jones's share (GRIT 1 petition and GRIT 2 petition, respectively). Jones filed objections to the GRIT 1 and GRIT 2 petitions in October 2015.
III.
PROCEDURAL HISTORY
In April 2017, the Main Trust petition, the GRIT 1 petition, and the GRIT 2 petition, and Jones's objections to those petitions came on for trial. The trial court consolidated the three matters for purposes of trial. In its statement of decision, the trial court explained the matters before it at trial as follows: "Th[e court's] task falls into three categories: (i) calculation and distribution of surcharges (including interest and penalties by the trust estate) against . . . Jones for her previously-adjudicated neglect, self-dealing, and self-interested transactions, (ii) calculation and distribution of professional fees, including attorney fees, which . . . Jones is responsible for by virtue of her unjustified challenges to earlier accounts and orders, and (iii) settlement of the trustee's third account current." After the trial, the parties presented written closing arguments, and the court took the matter under submission.
The court then issued an order and statement of decision making the following rulings:
(1) determining the amount of the surcharge for Jones's malfeasance and misfeasance;
(2) determining the amount of the surcharge for professional fees incurred by other parties due to Jones's unjustified objections and challenges to earlier petitions;
(3) settling, allowing, and approving the Main Trust petition, and ratifying, confirming, and approving all acts and transactions by Okonski as trustee;
(4) settling, allowing, and approving the GRIT 1 petition and the GRIT 2 petition, and ratifying, confirming, and approving all acts and transactions by Bronson as trustee, discharging the surety, and exonerating the surety bond; and
(5) finding that Jones's objections to the Main Trust petition, the GRIT 1 petition, and the GRIT 2 petition lacked reasonable cause and were made in bad faith.
Jones filed a timely notice of appeal.
DISCUSSION
Before addressing her specific arguments, we first note that all of Jones's arguments in the trial court and on appeal are based on a faulty premise. Jones contends that the purpose of the most recent trial in this matter (which we are reviewing in this appeal) was not simply to determine the amount to be surcharged against her share of the trust; she contends that her acts and omissions that led to prior orders that she be surcharged, with the amount to be determined later, were still to be proved. She is incorrect.
In her closing trial brief, Jones wrote: "The one thing that I know for sure is that this court has discretion in determining what is just and equitable under the circumstances, when determining what amount if any should be surcharged. [¶] I know the court has taken the position that the requests for surcharge are merely a proveup by the Petitioners but I just don't think it is that cut and dry. Judges make mistakes and another judge has the ability to rectify that mistake if they chose to do so. [¶] As the court in Sosinsky v. Grant [(1992)] 6 Cal.App.4th 1548 held, 'It appears to us, however that neither a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding. As we noted "[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required[.]" 1 Witkin Cal. Evidence (3d. ed. 1986) section 80. Taking judicial notice of the truth of a judge's finding would be tantamount to taking judicial notice that the judges' factual finding must necessarily have been correct and that judge is therefor[e] infallible. We resist the temptation to do so.['] [¶] I hope that this judge will take the holding in Sosinsky into consideration while making its decisions in this case." (Italics added.)
Jones's basic premise is incorrect because the orders imposing a surcharge on Jones, either previously affirmed on appeal or as to which the time for appeal has long since run, have the certainty and finality of a judgment. Their merits were not reviewable in the instant trial. The trial court's task was akin to that of a court that has determined a party's right to contractual or statutory attorney fees, and schedules a hearing to determine the appropriate amount of those fees.
I.
REASONABLENESS OF THE ATTORNEY FEES AWARDED
Jones argues that the trial court abused its discretion by ordering fees paid to the attorneys for the trusts, as well as to Marie Hicks Jones's guardian ad litem, without finding their services were reasonable and for the benefit of the trust.
A.
Standard of Review
While we review the court's order for abuse of discretion (Kasperbauer v. Fairfield (2009) 171 Cal.App.4th 229, 234), the award "must be able to be rationalized to be affirmed on appeal" (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101). Given their supervisory responsibilities over trusts, trial courts must exercise a special responsibility to ensure that fee awards are reasonable. "'"[T]he underlying principle which guides the court in allowing costs and attorneys' fees incidental to litigation out of a trust estate is that such litigation is a benefit and service to the trust."'" (Conservatorship of Lefkowitz (1996) 50 Cal.App.4th 1310, 1314; see Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1461.) A trial court must consider whether the fees were reasonably necessary. (See Estate of Nazro (1971) 15 Cal.App.3d 218, 223.)
B.
Were the Fees Necessary?
The question whether the fees were necessary for the benefit of the trust has in large part been answered by the prior trial court orders. The trial court stated in the statement of decision following the April 2017 trial: "Jones's mitigating arguments as they touched upon surcharges identified by judges in years past may not be re-considered." By finding that a surcharge of fees and costs was appropriate, each prior trial court order conclusively determined that the fees incurred to address Jones's meritless opposition to objections when she was acting as trustee, or her meritless objections to the accounts and reports of the successor trustees, were reasonably necessary and for the benefit of the Main Trust, GRIT 1, and/or GRIT 2.
As to fees being considered for the first time in the present proceeding, with respect to the Main Trust, GRIT 1, and GRIT 2, the trial court found: "Respondent Jones, however, has also used these same hearings to make persistent broader objections directed to the overall content and efforts at recovery against her. All such protests were uniformly unsupported, frequently irrelevant, and made without cause and in bad faith. They are denied in their entirety." The court also found: "All surcharges ordered herein are based on the court's findings that the objections thereto filed by . . . Jones were made in bad faith as defined by Probate Code §§ 11003(a) and 17211(a)."
Regarding the difficulty in distinguishing between attorney fees incurred in the routine business of the trusts, and those incurred in responding to Jones's frivolous objections, the trial court stated: "[A]s touches professional fees, the court treads on brittle ground. As noted, all three trusts are still open, meaning that there have been continuing routine professional fees incurred against them which are not attributable to . . . Jones. But disambiguating such fees from the other fees incurred as a direct result of [Jones]'s frivolous objections and impediments has been challenging, particularly in reference to materials submitted by the main trust. In some cases the court was unable to locate any admissible evidence at all." Based on the statement of decision, we conclude the amounts of attorney fees awarded by the trial court as a surcharge against Jones in the first instance represent the court's determination of necessary fees, and we conclude that the court's finding is supported by substantial evidence, namely, the parties' written submissions to the court which were admitted into evidence, and the testimony of Okonski, Okonski's counsel Steven A. Ehrlich, and Okonski's husband Chester Okonski, who works as her probate assistant.
C.
Were the Fees Reasonable?
Jones's main contention is that there was no admissible evidence supporting the attorney fees surcharged against her. Nowhere does she claim that any particular item of fees sought was unreasonable. She argues that in the absence of direct testimony from GRIT attorney Ernest Hayward, former trust attorney Betty Jane Champlin (now deceased), and Marie Hicks Jones's guardian ad litem Suzanne Tague, the court abused its discretion by awarding their fees as a surcharge against her.
"An invoice itself is hearsay, and is not admissible to prove the work or services reflected in the invoice were performed, unless a foundational showing is made of an exception to the hearsay rule. [Citations.] If the proper foundation is laid, invoices are admissible as business records to prove the occurrence of the act, condition, or event recorded in the business record. [Citations.] 'Although a bill may evidence the rendition of the services set forth thereon [citation], in order to be competent evidence under [the business records exception to the hearsay rule], it must be supported by the testimony of a witness qualified to testify as to its identity and the mode of its preparation.'" (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 13.)
Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Billing statements authenticated by declaration are sufficient to support an award of attorney fees from the corpus of the trust. (Powell v. Tagami (2018) 26 Cal.App.5th 219, 230 [attorney's declaration attaching his billing statements as well as billing statements for other attorneys was sufficient basis to determine attorney fees award].) "[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous." (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396; see Cates v. Chiang (2013) 213 Cal.App.4th 791, 821-822 [trial court may award attorney fees for work performed by previous counsel based on later counsel's reconstructed summary of their work]; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [declaration of counsel made under penalty of perjury and verified cost memorandum is sufficient to support award of attorney fees].) No authority requires anything more for an award of attorney fees as a surcharge against a party objecting to the account.
Ehrlich provided testimony regarding his billing statements. Champlin, the former trust attorney, submitted a declaration regarding her fees and provided Okonski with her unpaid invoices. Both Okonski and her husband Chester Okonski, who works as Okonski's probate assistant, authenticated Champlin's invoices and declarations as business records.
As far as Hayward's fees incurred on behalf of GRIT 1 and GRIT 2, the trial court's earlier orders had approved attorney fees of $50,000 for GRIT 1, and $20,000 for GRIT 2. Further proof of those amounts was not required.
The actual amounts specified in the earlier orders were $50,385 and $20,520. In the order now on appeal, the trial court did not explain the rounding down of the fee amounts.
In the statement of decision, the trial court ordered an additional $55,000 in fees for GRIT 1 and $23,000 for GRIT 2 for work performed after the first round of fees was approved. The record contains no evidence supporting those additional fees.
In supplemental appellate briefing, Bronson argues that, during trial, Hayward submitted a schedule of requested fees pursuant to court order. The court's order for the schedule reads as follows: "The court expects each trustee counsel to prepare, serve on all parties, and lodge with the court a schedule itemizing all such requested professional fees sought by their respective clients (not including surcharges) (a) by name of each professional who claims such fees and (b) the total amount of such fees sought (subdivided by (i) fees previously approved by the court but not yet distributed and (ii) fees being requested for the first time). [¶] Notwithstanding any earlier filings, the foregoing schedules are to be accompanied by tabbed exhibits (e.g. bills, invoices, etc.) which counsel intend to offer as evidence in support of all requested professional fees." (Italics added.)
Jones did not submit a supplemental appellate brief on the subject of Hayward's attorney fees.
By its terms, the court's order for an organized presentation of the fees being requested recognized that the schedule to be provided was not evidence in and of itself, but rather would have to be supported during the trial with the offer of admissible evidence. Bronson's supplemental appellate brief does not identify any portion of the appellate record where evidence was admitted of the attorney fees incurred by Hayward on behalf of GRIT 1 or GRIT 2 after the first report was approved by the trial court. In the absence of evidence to support those fees, we will reverse the trial court's order in part. (Copenbarger v. Morris Cerullo World Evangelism, Inc., supra, 29 Cal.App.5th at p. 13.)
Jones is correct in asserting the trial court's order does not make an express finding that the fees it was awarding were reasonable and for the benefit of the trust. Because Jones did not file objections to the order and statement of decision bringing to the court's attention the absence of a finding of reasonableness, the doctrine of implied findings requires that we infer the trial court made findings in support of the prevailing parties on that issue. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.) There is substantial evidence supporting this finding, except as to the fees surcharged in favor of GRIT 1 and GRIT 2 that we have rejected, ante.
Therefore, we will direct the trial court to reduce the surcharge against Jones on GRIT 1 by $55,000, and on GRIT 2 by $23,000.
II.
FINDING OF BAD FAITH
The trial court made an express finding under Probate Code section 17211, subdivision (a) that Jones's objections to the trustees' accounts were made without reasonable cause and in bad faith. "[R]easonable cause to oppose a contest of an account requires an objectively reasonable belief, based on the facts then known to the trustee, either that the claims are legally or factually unfounded or that the petitioner is not entitled to the requested remedies. Conversely, there would be no reasonable cause to oppose a contest of an account only if all reasonable attorneys would have agreed that the opposition was totally without merit, or, in other words, no reasonable attorney would have believed that the opposition had any merit." (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 927.) Whether there was reasonable cause to raise the objections is a legal issue we review de novo. (Ibid.) "Bad faith involves a subjective determination of the contesting party's state of mind—specifically, whether he or she acted with an improper purpose." (Powell v. Tagami, supra, 26 Cal.App.5th at p. 234.) Whether the objections were made in bad faith is a factual issue we review for substantial evidence. (Ibid.)
"If a beneficiary contests the trustee's account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney's fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied." (Prob. Code, § 17211, subd. (a).)
"[I]n enacting [Probate Code] section 17211, the Legislature intended to discourage frivolous litigation about a trustee's accounting." (Chatard v. Oveross (2009) 179 Cal.App.4th 1098, 1110.) The provision is a "remedial statute" and "'"must be liberally construed 'to effectuate its object and purpose, and to suppress the mischief at which it is directed.'"'" (Leader v. Cords (2010) 182 Cal.App.4th 1588, 1597, 1598.)
In this case, the trial court settled, allowed, and approved the Main Trust petition. Substantial evidence, including the trial exhibits, the matters of which the court took judicial notice, and the testimony of witnesses (including but not limited to Okonski, her staff and her attorney) supported the court's findings. Jones's appellate briefs do not challenge the court's finding that Okonski met her burden to prove the correctness of the accounting.
Jones raised 19 separate and specific objections to the Main Trust petition. These objections included: (1) the fees requested by the trustee and the trustee's attorney were excessive; (2) the account contained errors regarding the trust's income and the current market value of real property; (3) the requests for surcharge against her were improperly calculated; (4) the trustee had failed to deal impartially with the beneficiaries; and (5) the trustee had failed to protect the value of the trust assets.
The trial court found that Jones had failed to prove any of her objections: "The parties made numerous evidentiary objections during the foregoing hearings. They were ruled upon on the record and are not revisited here. Respondent Jones, however, has also used these same hearings to make persistent broader objections directed to the overall content and efforts at recovery against her. All such protests were uniformly unsupported, frequently irrelevant, and made without cause and in bad faith. They are denied in their entirety."
Okonski argues that Jones failed to provide any evidentiary support at trial for her objections to the trustee's report. Jones does not refute this argument and does not provide any citations to the appellate record showing how the report contained any errors. (In re S.C. (2006) 138 Cal.App.4th 396, 406; see Cal. Rules of Court, rule 8.204(a)(1)(C).)
Jones offers the following as support for her objections to the Main Trust petition: "[Jones] objected to the Petition filed by [Okonski] on numerous grounds. [Jones] alleged the fees incurred were excessive and some services were not rendered for the benefit of the estate. The[] petition fails to state the current market value of the properties requested for distribution to Tracey and how the distribution was a benefit to the estate. Tracey was a 25% beneficiary and the 2 properties that were requested for distribution to Tracey Bronson comprised the bulk of the estate. The trustee misstates the amounts subject to surcharge by [Jones] and the Petition to surcharge was not well taken because it lacks specificity and is vague. The trustee did not articulate how the amounts requested were determined and when any payments were made and any reasons for delay in payments among other things." Jones's only citation in support of this statement is to the objections themselves. Thus, she provides no evidentiary support for her objections.
Contrary to Jones's objections, the court's approval of the Main Trust petition establishes that the fees incurred were not excessive and the services were performed for the benefit of the trust estate. With regard to the transfer of certain property to Bronson, the Main Trust petition notes that Bronson desires to purchase the properties at their fair market value, to be charged against her share, to which the trustee does not object; the trustee was also prepared to list and sell the properties. The Main Trust petition does state the market value of each piece of real property. The trial court's statement of decision, which sets forth in detail the amounts to be surcharged against Jones, belies her claim that the petition did not set forth those amounts with sufficient specificity. The appropriateness of the surcharges was determined by the trial court in previous hearings; some of those orders were affirmed by this court and the time to appeal the others is long past. Those matters are resolved, and Jones's continued attempts to relitigate them were frivolous and in bad faith.
In Powell v. Tagami, supra, 26 Cal.App.5th at page 222, the appellate court affirmed both the trial court's order finding an objection to a trustee's report and account was made without reasonable cause and in bad faith, and a second order requiring the objecting party to pay attorney fees and costs pursuant to Probate Code section 17211. The trial court in Powell v. Tagami found a lack of cause and bad faith in part because some objections dealt with matters that had been adjudicated and become final. (Powell v. Tagami, supra, 26 Cal.App.5th at p. 234.) The Powell v. Tagami appellate court noted: "As to lack of reasonable cause, the [probate] court stated, 'The court found all of the objections to be without merit. Some dealt with matters that have been settled by the court and not subject to re-litigation. Some dealt with matters that were inconsequential. Some were based on factually inaccurate assertions.' The [probate] court also found the contest was taken in bad faith stating, 'the court concludes that the only reasonable explanation for the unreasonable objections to the Third Account is that Charles intended to perpetuate family disputes; or to gain a personal advantage in distributions from the Trust; or both. Under any explanation, the court finds that such intention rises to the level of bad faith.' We conclude the [probate] court did not err in making these findings." (Ibid.)
As to reraising matters that had already been settled, the appellate court held: "A substantial portion of the supplemental objections and supporting exhibits complained about [the trustee]'s actions and fees paid to Attorney Thompson in the two prior accounts. Settlement of an account is conclusive to all interested parties and releases the trustee from future claims arising from those actions." (Powell v. Tagami, supra, 26 Cal.App.5th at pp. 235-236.)
Here, too, Jones's arguments regarding surcharges previously imposed and awards of attorney fees against her, which have been finalized in the trial court and upheld on appeal, establish a lack of reasonable cause for the objections. Constant objections without legal or factual basis are indicia of bad faith. Following the trial on the first accounts current and reports of Marie Hicks Jones's conservatorship and of the Main Trust, the trial court found that Jones's objections to both accounts and reports were without reasonable cause and were made in bad faith, and therefore imposed surcharges against her pursuant to Probate Code sections 2622.5, subdivision (a) and 17211, subdivision (a).
Probate Code section 2622.5, which uses the same language as section 17211 regarding baseless objections, is applicable to guardianships and conservatorships.
Following the trial of the second account and report of the Main Trust and Jones's objections thereto, the trial court settled, allowed, and approved that account and report, and imposed surcharges on Jones because her objections lacked reasonable cause and were made in bad faith. The court found:
"With regard to the issue of the objections of . . . Jones, the Court finds that the objections to the Second Account, as Supplemented, were without reasonable cause and in bad faith, and that as a result thereof, . . . Jones is surcharged for attorney's fees and reasonable costs incurred by the Successor Trustee in defending against the objections. Said amount shall be deducted from . . . Jones' share of the Trust Estate.
"A. The Court based its decision on the following facts: There was no basis for the objections in that no credible evidence supporting the objections was introduced by . . . Jones, who was motivated by anger and disappointment as to the fiduciary's role and as to certain family members and co-beneficiaries.
"B. The legal basis for the Court's decision is that the objections were made without reasonable cause and in bad faith per Probate Code Section 17211(a)." (Underscoring omitted.)
Jones's objections to the Main Trust petition, the GRIT 1 petition, and the GRIT 2 petition also demonstrate her bad faith attempt to delay the process of charging her surcharges against her share of the trust estate. The trial court's factual finding of bad faith was amply supported by substantial evidence.
III.
CONSOLIDATION
During pretrial proceedings, the trial court consolidated trial of the Main Trust petition with trial of the GRIT 1 and GRIT 2 petitions, pursuant to Code of Civil Procedure section 1048, subdivision (a). We review the court's consolidation order for abuse of discretion. (People v. Mason (1991) 52 Cal.3d 909, 933.)
The trial court addressed the issue of consolidation before trial. "I am going to consider whether or not there is any advantage to consolidation or any disadvantage. If there is a disadvantage to Ms. Jones, I want you to get me a brief that it's either illegal or too late, or it can't happen; or if you decide, hey, this is a good thing to do that. [¶] Everybody is welcome to file on that subject. I am not going to wait a week or two for you to file briefs. If I get comfortable with my own research, I'm just going to decide yes or no."
Jones objected to consolidation on three grounds: (1) lack of proper notice; (2) lack of common questions of law and fact among the matters; and (3) undue prejudice. On appeal, she pursues only the prejudice argument. She contends that she had to pay filing fees for her objections in all three trust matters, while the other parties paid filing fees only for the matters which they directly filed. If this truly prejudiced her, it could have been easily remedied by, among other things, offsetting payments at the conclusion of the trial. She also contends that after consolidation "she had to contend with 2 lawyers prosecuting the case." She fails to support this argument regarding alleged prejudice with any factual or legal citation. Jones has failed to show the trial court's order caused her to suffer any prejudice.
Jones's opposition was filed after the trial court issued its consolidation order.
Jones cites one instance in which the trial court invited the attorney representing the trustee of GRIT 1 and GRIT 2 to make a short statement. But that attorney had already been participating in the discussion among the court, Jones, and the attorney for the trustee of the Main Trust, and nothing about the specific exchange cited shows any prejudice.
The trial court acted well within its discretion in consolidating the matters for purposes of trial.
IV.
ADMISSIBILITY OF EVIDENCE
A.
Hearsay
Jones argues the trial court erred by admitting hearsay evidence at trial. The trial court has wide discretion when determining whether to admit evidence over a hearsay objection. (People v. DeHoyos (2013) 57 Cal.4th 79, 131, 132.) This is particularly so when the issue is "whether a proper foundation has been laid for the admission of business records under Evidence Code section 1271." (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.)
In support of this argument, Jones cites to almost 50 pages of the reporter's transcript, in which the parties argued regarding the admissibility of 16 different documents. All of the documents the court admitted were either compilations of attorney invoices offered to support the requests for attorney fees to be paid by Jones, or documents filed with the court, including the Main Trust petition and various court orders. Although she does not address any specific document, we will provide an analysis of each type of document to ensure our analysis is complete.
With regard to the attorney invoices, testimony was offered (1) establishing that they were made in the regular course of business, at or near the time the services were performed, and as to how they were prepared and (2) attesting to their trustworthiness. (Evid. Code, § 1271.) While one of the attorneys performing work for the trustee had died before trial, there was sufficient evidence regarding the preparation and transfer of her attorney fee invoices to support their admission. (Cates v. Chiang, supra, 213 Cal.App.4th at pp. 821-822; Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 396; Weber v. Langholz, supra, 39 Cal.App.4th at p. 1587.)
With regard to the court documents, Jones correctly argues that the contents of a judgment are usually hearsay when offered in another case to prove the truth of the matters stated therein. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2019) Judgments, § 9.2, p. 9-2 (rev. 3/14).) Where an interlocutory judgment or order is appealed from and affirmed on appeal, however, it becomes the law of the case. (Cf. City of North Sacramento v. Citizens Utilities Co. (1963) 218 Cal.App.2d 178, 193.)
In this case, the trial court took judicial notice of all of the judgments and orders referenced in the relevant pages of the reporter's transcript: "Regarding such records, the notice taken will be of the dates, the date of their execution, the dates of their recordation and/or filing, the parties thereto, and the legally operative language of all said documents." When later admitting the same documents into evidence, the court stated: "With judicial notice, I am taking judicial notice of facts contained in a document, or at least the authenticity of the document itself as being a filed document. [¶] Insofar as judgments and orders which repeat findings of fact, I think I am at liberty to accept them as fact acceptance, as far as they are clearly opinion or not relevant to the issues being decided. Which is why you will have to be specific with the judicial notice document, because there are rules against taking some things into judicial notice just because they happen to appear on a document that has been filed in court. [¶] . . . [¶] . . . I think most of the documents here are documents [of] which I have already taken judicial notice, and to put them into evidence does not strike me as being offensive. And I am going to give, to the extent they are not, that I have no right to assume the veracity of the underlying fact, I still think I have a right to consider the document as a whole on the evidentiary standard, which I have to give it weight, or no weight if I choose to do so."
The judgments and orders from which Jones previously appealed are the law of the case, and there was no error in the trial court's consideration of them. The court also properly took judicial notice of the legally operative language of the judgments and orders, and the court's comments on the record indicate it intended to use them only for a proper, non-hearsay purpose.
B.
Judicial Notice
Citing Evidence Code section 456, Jones argues that the court erred by denying a request for judicial notice without advising the parties. However, she fails to cite to any portion of the record in which the court denied a request for judicial notice without advising the parties. "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made." (In re S.C., supra, 138 Cal.App.4th at p. 406; see Cal. Rules of Court, rule 8.204(a)(1)(C).)
Jones also argues: "The pleadings included declarations that are not admissible evidence but were considered by the court." Without more argument or any citation to the record, Jones has forfeited this issue. (In re S.C., supra, 138 Cal.App.4th at p. 406.)
If this argument was meant to object to the admission of pleadings through judicial notice, we note that Evidence Code section 452, subdivision (d)(1) specifically permits the trial court to take judicial notice of the records of any court of this state.
V.
LACHES DEFENSE
Jones argues that the trial court abused its discretion by refusing to allow her to offer evidence in support of her affirmative defense of laches. We conclude this argument is meritless.
The defense of laches requires unreasonable delay in asserting an equitable right causing prejudice to the party asserting the defense. (California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 521-522.) Jones fails to show unreasonable delay or prejudice. The issue involved the surcharge orders previously imposed against her, from which she did not appeal, or which were decided against her on appeal, and have all become final. She contends that "[w]itness[es] have been lost and died, memories fade[d] and information and documents [have been] lost as a result" of the delay in bringing the third petition to trial. She fails to show how the deaths of Okonski's former attorney and Louis C. Jones had any effect on the trial of her objections to the Main Trust petition, the GRIT 1 petition, and the GRIT 2 petition. Nor does Jones identify any documents that have been lost or what their impact on the trial might have been. She also claims to have been prejudiced by the accrual of interest on the surcharges against her. But she fails to explain how that prejudiced her or, assuming it did, why she failed to request that the trustee sequester the surcharges from the trust assets until settlement.
DISPOSITION
The amount of the surcharge against Jones on GRIT 1 shall be reduced by $55,000, and the surcharge against Jones on GRIT 2 shall be reduced by $23,000. In all other respects, and as so modified, the order is affirmed.
Because Okonski prevailed on all issues between Okonski and Jones, Okonski shall recover her costs on appeal as against Jones.
Because both Bronson and Jones prevailed in part on the issues between them, these parties shall bear their own costs on appeal as to the issues between them.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.