Opinion
G054323
04-30-2018
MARK R. ESTACION et al., Plaintiffs and Appellants, v. SHARON MORGAN, Defendant and Respondent.
Melinda Luthin Law and Melinda M. Luthin for Plaintiffs and Appellants. Charles K. Mills for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00807011) OPINION Appeal from an order of the Superior Court of Orange County, David L. Belz, Judge. Affirmed. Melinda Luthin Law and Melinda M. Luthin for Plaintiffs and Appellants. Charles K. Mills for Defendant and Respondent.
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Plaintiffs Mark R. Estacion (Mark), Richard A. Estacion (Richard), and Scott A. Estacion (Scott; collectively plaintiffs) appeal from an order denying their motion to disqualify Charles K. Mills (Mills) from acting as attorney for defendant Sharon Morgan (defendant). They claim uncontroverted evidence supported a finding of disqualification, the court relied on an incorrect legal standard in denying the motion, and the court failed to weigh the interests of maintaining ethical standards of professional responsibility against a party's right to counsel of her choice. In the disqualification motion plaintiffs also asserted defendant and Mills had stolen documents and on appeal they maintain the court erred in failing to require their return and prohibiting defendant from using them in the case.
The court ruled there was insufficient evidence to support the motion, much of which was based on speculation. We agree and affirm.
FACTS AND PROCEDURAL HISTORY
This is the second appeal in this case. As set out in our first nonpublished opinion, Estacion v. Morgan (Feb. 28, 2018, G053950), plaintiffs are the sons of Abelardo Estacion (Abelardo). Defendant is the daughter of Dortha Lamb (Dortha). As alleged in plaintiffs' petition (Petition), from approximately 1990 forward Abelardo and Dortha believed they were in a common law marriage. According to the Petition, in March 2015, coming to understand they were not legally married, Dortha and Abelardo wed.
Dortha was the trustor of the Dortha L. Lamb Trust (Trust). In 2014 she allegedly executed a trust amendment (2014 Amendment).
After Abelardo and then Dortha died, plaintiffs filed the Petition for, among other things, declaratory relief, damages, an accounting, and injunctive relief against defendant in the probate court. The Petition alleged defendant caused Dortha, who was suffering from dementia, to execute a restatement of the Trust (Restatement) naming defendant as the trustee and sole beneficiary. The Petition seeks, among other things, to invalidate the Restatement and declare the 2014 Amendment to be operative.
Plaintiffs alleged in their Petition that Abelardo was murdered and defendant and her family members are "persons of interest." At the hearing on the Motion plaintiffs' counsel, Melinda M. Luthin (Luthin), represented to the court defendant's son-in-law had been arrested. Mills disputed that relationship but not that an arrest had been made.
Motion
In May 2016 plaintiffs filed their 240-page Motion. In addition to disqualification, the Motion also requested the court strike defendant's "Answers/Objections"; compel defendant and Mills to return all of Abelardo's and plaintiffs' private or privileged documents (Documents) in their possession and bar defendant and Mills from disclosing the existence of any information in those Documents or discussing them with new counsel; order defendant and Mills to disclose anyone to whom they may have disclosed the contents of the Documents; require defendant to hire new counsel; and require new counsel to file a declaration he or she had not received any information from the Documents.
Plaintiffs did not define "Answers/Objections."
The Motion was based on five grounds:
1. Mills's ex parte communication
Plaintiffs claimed Mills had an improper ex parte communication with a court clerk. In her declaration, Luthin stated that in opposition to defendant's motion to quash some subpoenas, she requested sanctions for filing a frivolous motion. The court took the matter under submission and issued a minute order denying the motion, instructing plaintiffs to prepare a proposed order. Luthin's proposed order included award of $8,560 in sanctions despite the fact the court had not ordered them. After serving defendant with the proposed order and receiving Mills's objections, including an objection to the sanctions, Luthin submitted the proposed order and her summary of defendant's objections to the court. The judge signed the order as submitted, including the award of sanctions.
According to Mills, when he received a copy of the signed order, he assumed the clerk had not realized the minute order did not contain an award of sanctions. He called the clerk and "informed her of the apparent error. The clerk took it from there." Thereafter the court issued a revised order striking out the award of sanctions with a marginal note stating, "Sanctions order stricken per Judge David L. Belz" and the clerk's initials.
2. Mills's excessive reading of Luthin's work product
Plaintiffs claimed Mills "excessively read" and failed to return Luthin's work product. In her declaration, Luthin stated that during a deposition she inadvertently handed to defendant her working copy of defendant's objection to the Petition. Luthin stated she had made extensive notes as to each paragraph of the objection that spanned 15 pages. She had also made notes on the backs of the pages, some of which were attorney-client communications.
When Luthin asked defendant whether she was familiar with the document, Mills responded, "We're looking at the back right now." That is when Luthin realized the document she had given Mills contained her notes. She stated she made a gesture for Mills to return it to her. She then asked him for the document. She told him she would give him another copy and if he "happen[ed] to see something that might constitute attorney work product, I would appreciate that you would not read it any more than necessary and then notify me." Mills replied, "Okay."
Luthin told Mills he had a duty under the rules of professional conduct, asking if he was aware of it. Mills replied she was not taking his deposition. Luthin asked defendant three more questions, and then asked Mills for the document again, at which point he handed it back. There was no further discussion.
Mills's declaration in opposition to the Motion stated that when Luthin handed him the document he noticed handwriting on the back and looked at it. It further stated that Mills saw a note stating something to the effect of "'Spoke with John Deily'" and "'he says the Court does not like it when a case keeps coming back to Court.'" He then realized these were Luthin's notes and returned the document to her. He "read nothing of a substantive nature."
3. Defendant's theft of Documents
Plaintiffs asserted defendant and her family stole Documents, which they claim belonged to Abelardo and contained privileged and private information about him, plaintiffs, and "other associates." Defendant testified in her deposition she had made copies of bank records for accounts solely in Abelardo's name. Defendant stated she believed the accounts belonged to Dortha. Defendant also testified she found other bank statements scattered on the floor of Dortha and Abelardo's residence (Residence). Defendant used the bank account numbers on those statements as the basis for some deposition subpoenas for plaintiffs to produce bank records.
Luthin stated in her declaration that defendant admitted she found documents at the Residence about a wedding gift from Abelardo to Scott and the information was used in a related civil suit defendant filed against plaintiffs and in her objection to the Petition. But defendant's deposition testimony does not bear this out. Defendant did not state she obtained information about the wedding gift from any alleged stolen Documents.
A few questions previously, in response to a question about a $2.5 million claim, apparently in the related action by defendant against plaintiffs, defendant stated, "I have all the documentation."
Luthin also stated in her declaration that defendant admitted she found at the Residence letters from Mark to Abelardo regarding financial and medical matters. Defendant did testify in her deposition about two letters in which Mark asked Abelardo for money. There was no testimony about documents containing health information.
Plaintiffs apparently based their belief some of the Documents contained medical information on an e-mail from Mills asking about someone's health issues. Plaintiffs have redacted the name included in the e-mail. In defendant's opposition Mills stated the Documents had nothing to do with plaintiffs' health. The health information he had came from Dortha's sister-in-law.
Luthin's declaration also stated defendant had possession of documents regarding plaintiffs' and Abelardo's interests in a private company, claiming defendant testified she gave the documents to the trustee's attorney. Again, the deposition testimony is not entirely consistent with this statement. Defendant testified about the percentage of ownership interests in the company, with Dortha holding the majority. There was no testimony she gave those documents to the trustee or the trustee's attorney.
Luthin stated in her declaration that approximately two weeks after the deposition she, Mills, and the trustee's lawyer, W. Rod Stern (Stern), exchanged a series of e-mails wherein Luthin asked Mills to return Abelardo's personal property and all private information relating to plaintiffs. Mills responded that he planned to deliver the Documents to the trustee, describing most of the Documents as "love letters from [Abelardo's] girlfriends over the years in addition to pornography." He stated that the Documents belonged to the Trust because they were found in the Residence. He also noted they were evidence and "need[ed] to be properly stored."
Stern responded to Mills that if the Documents belonged only to Abelardo he should give them to Luthin. If they were not trust assets, neither the trustee nor Stern was authorized to possess them.
Mills suggested making copies of the Documents for himself and Luthin and delivering the originals to the trustee. Luthin objected, directing Mills not to copy or read the Documents. Not receiving a response, Luthin notified Mills she would be filing a motion for return of the Documents and for sanctions, again asking for the Documents.
Luthin sent a letter asking Mills to identify the Documents and demanding he withdraw from representing defendant. At defendant's deposition three weeks later Luthin asked defendant to return the Documents. According to Luthin, the Documents have not been returned.
In the opposition, Mills stated the Documents are not privileged. He claimed Luthin continued to "falsely accuse[]" defendant of causing financial harm to Dortha and being responsible for Abelardo's death. He noted his offer to deliver copies to the trustee and plaintiffs' refusal. He also explained he had produced a full set of the Documents to plaintiffs in discovery. Mills stated the Documents are "highly relevant" to this action and the murder prosecution and must be "retained and protected for future court proceedings." He feared the Documents would be destroyed if given to plaintiffs.
4. Illegal attorney fees
The fourth ground for the Motion was alleged "illegal" fees paid to Mills. Luthin cites to a request that Mills's fees not be paid from the Trust and also the court's instruction Mills had to petition to have his fees paid.
Luthin submitted checks and bank statements which she claimed documented payments to Mills of at least $11,500 from a Trust bank account. He was also paid $3,000 from a custodial account for Dortha. Defendant testified she probably paid more than $10,000 to Mills.
Contrary to Luthin's claim, defendant did not testify she could have paid him more than $20,000.
In his declaration in opposition, Mills stated he "did not knowingly collect illegal fees." As to the $3,000 check, he believed it came from defendant's own funds. He also stated he intended to return the fees but first Abelardo died, causing chaos, and then Dortha died, mooting the need to return funds. He further noted defendant's accounting had been filed and plaintiffs' objection to payment could be made in connection with it.
5. Mills's filing of false papers and misleading the court
The final ground for the Motion was the claim Mills had filed false papers and misled the court. In her declaration in support of the Motion Luthin claimed defendant had admitted she had no claims of elder abuse against two of the plaintiffs. In addition, any claims against the third plaintiff and Abelardo were in connection with gifts of approximately $13,000 made several years' prior. Consequently, after the deposition Luthin demanded defendant dismiss her related action against plaintiffs with prejudice. Mills subsequently dismissed Richard.
Luthin also pointed to an allegation in defendant's objection, filed after the deposition, stating plaintiffs looted up to $2.5 million of Dortha's assets. Luthin further relied on the accounting filed by defendant and verified by defendant and Mills. Luthin claims certain payments to Mills are not included.
Mills denied filing false documents. He also stated the documents filed in the related action are irrelevant to this case. He further claimed there was "abundant probabl[e] cause" plaintiffs and Abelardo stole $2.5 million from Dortha, citing checks Abelardo drew on a joint account after he had notice of Dortha's pending conservatorship.
Ruling
The court denied the Motion, stating it had given it "very serious consideration." The judge stated "there just wasn't enough information . . . [for it] to rise . . . to the level where I could grant a disqualification." "The pleadings, the information that was provided just didn't rise to the level where the court could say, okay, I'm going to disqualify Mr. Mills. It just didn't, and that's the problem with it." Later during the argument the judge stated the Motion was "based on a lot of speculation" and reiterated, "I really looked at this motion and I had a research lawyer, a very highly qualified one[,] look at it, and we spent some extra time on it. But ultimately . . . there wasn't enough information there for the court to grant the motion." "I can't grant it because there just wasn't enough in the totality of it to grant a disqualification motion."
DISCUSSION
1. Standard of Review
Plaintiffs argue we should apply a de novo standard of review because the court "misconstrued or misapplied the law." We disagree. Generally, we review a ruling on a disqualification motion for abuse of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) None of plaintiffs' arguments persuades us to use any other standard.
The fact the Motion was based on documentary evidence and not testimony provides no basis for a de novo standard. Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, on which plaintiffs rely, does not support this argument. It used a de novo standard because the issue dealt with application of a statute to undisputed facts. (Id. at p. 758.) We disagree the facts are undisputed. The record makes clear there are disputes.
We also reject the argument we should use de novo review based on the trial judge's alleged "lack of neutrality." Plaintiffs rely on the claimed ex parte communication by Mills to the court clerk, concluding this was misconduct by the clerk or the judge. Cases cited by plaintiffs do not support this argument. The record does not support a claim of misconduct. Further there is no evidence the judge was partial to defendant nor any reasonable perception of that.
In any event, the challenged order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Ibid.) 2. Standard for Disqualification
"'The trial court's power to disqualify counsel is derived from the court's inherent power "[t]o control in furtherance of justice, the conduct of its ministerial officers." [Citations.] Disqualification motions implicate several important interests, among them are the clients' right to counsel of their choice, the attorney's interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. [Citation.] The "paramount" concern in determining whether counsel should be disqualified is "the preservation of public trust in the scrupulous administration of justice and the integrity of the bar." [Citations.] It must be remembered, however, that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety.'" (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 685-686.)
Courts must ensure disqualification motions are not misused. They "often pose the very threat to the integrity of the judicial process that they purport to prevent." (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300-301.)
Plaintiffs assert the order must be reversed because the court used the wrong standard in ruling on the Motion. They incorrectly claim the court ruled it could only disqualify counsel where the lawyer's "conduct is so corrupt that disqualification 'was really the court's only choice.'" The court did not make any such ruling.
As stated above, the court repeatedly advised that plaintiffs had not presented sufficient facts to justify disqualification. Just prior to the passage on which plaintiffs rely the court stated disqualification was "a pretty serious matter . . . because . . . [e]verybody has a right to be represented by whom they want." In the passage plaintiffs cite to, the court actually stated, "And so, for the court to step in, you know, and disrupt that right, you know, the basis for the requested relief would have to be pretty darn clear and pretty darn obvious that that was really the court's only choice." It concluded, "It just wasn't."
The record also refutes plaintiffs' claim the court failed to apply the rule that ethical considerations affecting fundamental principles of the judicial system override a party's right to counsel. Plainly, the court carefully considered these two principles in making its decision.
Nor are we persuaded the court failed to consider whether defendant obtained an unfair advantage. As discussed below plaintiffs have not shown how use of alleged privileged information in allegedly stolen Documents harmed them.
Finally, we reject plaintiffs' claim the court did not understand it could not disqualify counsel based on past conduct. Plaintiffs quote the court as saying, "I can't do anything about what happened yesterday." But this was taken out of context. The court had already denied the Motion. The quote was part of a lengthy statement by the court urging the parties to cooperate, listen to each other, dial back the personal emotions, and focus on moving forward to prepare the case for trial. Earlier in the hearing the court had made similar statements. It repeated them twice again later in the hearing during argument on a discovery motion, at one point asking both parties to state they would not "get personal."
Rather, the court understood the drastic nature of disqualification and viewed plaintiffs' evidence as insufficient and speculative. It was plaintiffs' burden to establish a basis for disqualification. (Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237, 245.) They failed to do so. Where the underlying facts are not sufficient to support disqualification, there is no basis to grant the Motion under the guise of preserving trust in the judicial system. 3. Ex Parte Communication
Citing Rules of Professional Conduct, rule 5-300, which prohibits ex parte communications by a lawyer to a judge or judicial officer, plaintiffs argue Mills's contact with the clerk "to convince the judge to 'reverse[]' the order of sanctions" was a basis for disqualification. We disagree.
This is more properly characterized as an attorney contacting the clerk to point out a clerical error, something which is not uncommon. The court did not grant the sanctions request when ruling on the discovery motion. Thus, such an award should not have been part of the order.
We question the propriety of Luthin submitting a proposed order including sanctions which were not awarded, especially in light of Mills's objection. The court obviously recognized the error since it immediately revised the order to delete the sanctions award. We reject plaintiffs' characterization of what occurred as "successfully affect[ing] a judicial decision on the merits."
The trial court stated Mills should have first spoken to counsel before contacting the court clerk, noting that was "kind of pretty standard." While there may have been a better way for Mills to handle this, the court did not err in denying disqualification. Moreover, even if there had been a violation, which we do not suggest, disqualification is not "necessarily warranted where an attorney violates a specific disciplinary rule." (Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 303, italics omitted.) Those rules "are not intended to be used as procedural weapons in disqualification cases." (Ibid.)
Plaintiffs' contention Mills and defendant "gained an unfair advantage" by having the sanctions stricken from the order is without merit. Sanctions were never awarded in the first place. Further, we do not agree allowing Mills to continue representing defendant would cause an average citizen to question the fairness of the proceedings. Finally, plaintiffs have not shown there was judicial misconduct nor that the judge's impartiality should be questioned. Nothing in the record supports such an accusation. 4. Excessive Reading of Luthin's Work Product
When an attorney inadvertently receives privileged or confidential documents, the attorney "should refrain from examining" them any more than necessary to determine they are privileged and promptly notify opposing counsel of receipt. (State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656 (State Fund).)
Plaintiffs argue Mills violated State Fund when he did not promptly return the document containing Luthin's notes handed to him at the deposition. They claim Mills "excessively read" the document for almost two minutes, ignoring Luthin's requests to return it to her. They also complain Mills repeated some of what he read in two court documents. They maintain the court abused its discretion failing to disqualify him because Mills admitted he reviewed the document and refused to admit that was wrong, and because he "repeatedly used" the information he learned in the litigation. We are not persuaded.
Mills disputes Luthin's version of how much he read. He states he read two handwritten lines to the effect Luthin had spoken to Deily who said the court did not like it when a case kept coming back. At that point he returned the document. He also stated he did not read anything substantive.
Plaintiffs argue that in denying the Motion the court presumed all the facts they presented were true. This is based on the court's statement there was insufficient information presented to grant the Motion. We cannot and will not draw such a conclusion from that statement.
Further, we see no evidence the court "arbitrarily refuse[d] to consider . . . pertinent and undisputed evidence." "'[U]ncontradicted testimony in appellant's favor does not necessarily conclusively establish the pertinent factual matter: The trier of fact is free to reject any witness' uncontradicted testimony; and the court of appeal will affirm so long as the rejection was not arbitrary.'" (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 368, italics omitted.) We see nothing arbitrary about the court's decision.
The fact the deposition transcript shows almost two minutes elapsed before Mills returned the document does not mean he was reading it for that period of time. The transcript also reveals Luthin was not overly concerned because she first asked Mills that if he saw something that was work product to tell her and not read any more "than necessary." She also continued to ask questions during that time period without waiting for return of the document.
In addition, contrary to plaintiffs' argument, Mills's explanation of what he did read does not prove as a matter of law he violated State Fund. "'Mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification.'" (State Fund, supra, 70 Cal.App.4th at p. 657; accord Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819.) This is not a "content-specific characterization" of documents described by the court in Clark v. Superior Court (2011) 196 Cal.App.4th 37, 53, footnote 8, where the court concluded the lawyer had made "an in-depth examination" of the documents' contents.
We reject plaintiffs' claim the court failed to consider whether Mills "reviewed the document[] no more than reasonably necessary" to decide whether it contained privileged information. The court specifically stated it gave the Motion "very serious consideration" and "really looked at [it]." The court and a "highly qualified" research attorney spent "extra time" reviewing it. We presume the court's review included this consideration. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) We do not reweigh credibility. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613). 5. Theft of Private Documents
Plaintiffs claim defendant stole Documents from Abelardo and gave them to Mills. They assert these Documents contain their private health information, Abelardo's purported love letters and pornography, and plaintiffs' financial information, all of which are protected by the right of privacy. They argue Mills used the Documents to harass them and failed to return them, thereby violating his ethical duties and necessitating disqualification. Again, we disagree.
First, we question the initial premise of plaintiffs' argument, i.e., that defendant stole Documents. According to the record, the Documents about which plaintiffs complain were found in the Residence after Abelardo died while Dortha was still living. Thus, it is not clear the Documents, even if initially belonging to Abelardo, did not become Dortha's upon his death. Less than a week later defendant became the trustee of the Trust when Dortha executed the Restatement. We understand one of plaintiffs' major complaints in this case is that the Restatement should be invalidated, and we are not commenting on the merits of that claim or the legitimacy of defendant acting as trustee. Nevertheless, plaintiffs have not shown that defendant, as trustee, did not have a claim to the Documents.
We see no finding in the record about who owned the Documents and draw no conclusion about ownership.
Second, there is no evidence the Documents contained plaintiffs' health information or financial information.
Third, the evidence does not support plaintiffs' claim Mills used the Documents to "harass and intimidate" them. We disagree with Luthin's assertion Mills "taunt[ed]" her by asking several irrelevant questions about someone's health. Nor do we characterize Mills's offer to send copies of the Documents to the temporary trustee as a "threat[]." Finally, we reject plaintiffs' hyperbolic claim this activity was "likely a crime" because, among other things, it is not supported by applicable authority or reasoned legal argument. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [failure of appellant to provide authority and reasoned legal arguments forfeits issue].)
Thus, there was no error in denying the Motion on this basis. For the same reasons, the court did not err in refusing to order return of the Documents. 6. Illegal Attorney Fees
Plaintiffs contend Mills should be disqualified because he received and retained fees without court approval. They maintain he does not acknowledge this was wrong, making him likely to continue to do so. There has been no ruling on the propriety of Mills's fees. It will be before the court in connection with defendant's accounting and improprieties, if there are any, may be addressed then. Thus the matter is premature. We express no opinion on it except to say the court did not err in refusing to disqualify Mills on this basis. 7. Making False Statements
Plaintiffs argue Mills has committed perjury and made false statements to the court, making him "unfit to serve as counsel." (Capitalization & boldface omitted.) They claim Mills filed a false accounting and made false statements regarding the allegedly stolen Documents, constituting "gross negligence and moral turpitude."
A motion to disqualify counsel is not the proper procedural vehicle to make these determinations. These are substantive claims to be addressed in a motion for summary judgment, trial, or a similar proceeding. Plaintiffs have not cited any cases supporting disqualification on this ground. 8. New Trial Judge
Plaintiffs request that "[if] the matter is remanded" a new trial judge be assigned based on the alleged ex parte communication. We do not understand plaintiffs' comment about remand. The case will return to the court whether we affirm or reverse the order. In any event, we decline the request.
We have the authority to direct the case be assigned to a different judge in the interests of justice. (Code Civ. Proc., § 170.1, subd. (c.) However this power "should be 'used sparingly.'" (In re Marriage of Walker (2012) 203 Cal.App.4th 137, 153.) As noted above, there was no improper ex parte communication and the record does not reflect any judicial misconduct or bias. Nothing in the record suggests the judge will be anything but fair. The interests of justice would not be served by reassigning the case. 9. Endnote
Plaintiffs devoted almost 20 pages of their reply brief to the purported deficiencies in the respondent's brief and asked that we disregard the entire brief or at least those portions that are irrelevant, outside of or contradicted by the record, not supported by citations or authority or reasoned legal argument, and "scurrilous [and] degrading." (Capitalization, boldface, & underscoring omitted.) Plaintiffs did not make a motion to strike the respondent's brief.
We have considered the respondent's brief to the extent appropriate. Further, we have exercised our discretion to disregard any failure to comply with the California Rules of Court. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
Plaintiffs do not win by default based on defects in the respondent's brief, failure to address an issue, or even had there been no respondent's brief. They still have the burden to affirmatively show error. (Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505.)
Having said that, none of the briefs would win any awards. Among other things, plaintiffs' briefs were overly complicated, repetitive, and too long, including numerous irrelevant facts. They often relied on hypertechnical arguments and sometimes cited cases that were inapplicable or inapposite.
Defendant's brief was essentially copied from her opposition to the Motion rather than a direct response to plaintiffs' arguments on appeal. Further, we reject Mills's attempt to introduce new evidence about plaintiffs' alleged attacks on Mills and the temporary trustee and her lawyer. Mills acknowledges the evidence is outside the record (Cal. Rules of Court, rule 8.204(a)(2)(C); Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8 [we may consider only what is in record]), and his declaration it is true under penalty of perjury does not cure the defect.
Finally, we deplore the hostile tone of all of the briefs, especially plaintiffs'. This style of advocacy works against a party's position, detracts from his or her arguments and claims, complicates our review, and needlessly drives up attorney fees and other litigation costs. It appears counsel have not heeded the trial court's numerous suggestions to cooperate, act civilly, and put personal feelings aside. We make our own strong recommendation counsel dial back their emotions and act in a more professional manner.
DISPOSITION
The order is affirmed. Defendant is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.