Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. MPR01407, Robert Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
David E. Sabol, in pro. per., for Objector and Appellant.
Paul F. Smith for Petitioner and Respondent.
OPINION
RAMIREZ, P.J.
Appellant David Sabol (Sabol) challenges the trial court’s ruling denying his motion to set aside or vacate its rulings regarding the administration and accounting of an inter vivos trust, of which Sabol is a beneficiary. Between its two rulings, the trial court: (1) approved the trustee’s accounting of assets and transactions for the trust; (2) authorized the payment of attorney fees from trust assets; and (3) awarded sanctions against Sabol in favor of the trust. As discussed below, we affirm the rulings of the trial court.
Facts and Procedure
Frances Sabol (the deceased) died on February 17, 2005. Substantially all of the deceased’s assets were owned by the Frances Sabol Family Trust. Sabol is the stepgrandson of the deceased and one of six beneficiaries of her estate. Respondent Patrick O’Brien (trustee) is the trustee of the trust.
Beginning in June 2005, Sabol filed a series of motions and requests to determine whether the trustee was properly administering the trust. The motions include: a June 20, 2005, petition for order to produce will; a July 12, 2005, petition to determine existence of trust; a July 26, 2005, petition for order to produce codicil; a July 28, 2005, request by beneficiary to trustee for full accounting of trust property; an August 19, 2005, petition to determine existence of Paul F. Smith; a March 13, 2006, response by Sabol to production of trust accounting; a March 27, 2006, objection by Sabol to production of trust accounting and supplement to accounting; Sabol’s April 17, 2006, motion for joinder of action with case No. MCV06736 ; a June 1, 2006, objection to production of trust accounting; a July 17, 2006, trial brief by Sabol in response to trustee’s lack of response, etc.; a September 19, 2006, objection; failure by trustee to account for trust property pursuant to court order; a September 27, 2006, memorandum of points and authorities in support of supplemental objections to production to trust accounting; an October 5, 2006, supplemental objections to accounting; an October 13, 2006, motion for hearing de novo and request for reconsideration of unresolved accounting issues, etc.; an October 30, 2006, request for posting of bond; a November 3, 2006, amended motion for an order setting aside approval of accounting, etc.; a February 2, 2007, objection etc. to matters being heard by a commissioner rather than a “‘real’ judge”; and various supporting declarations, supplements and amendments to the above.
In case No. MCV06736, Sabol filed a separate lawsuit against the trustee and the trust’s attorney, Paul F. Smith, alleging wrongful internment of the deceased’s cremated remains. Sabol subpoenaed documents and set a trial date in September 2005, but did not appear at the trial. Sabol later refiled the case, which was still pending as of the trial court’s October 10, 2006, hearing regarding the trust accounting.
The trustee filed a series of accountings, supplementary accountings, and responses to Sabol’s requests for information beginning in July 2005 through the end of 2006.
More important for the purpose of this appeal, on October 16, 2006, Judge Kenneth G. Ziebarth made the following rulings, after a hearing held on October 10, 2006. First, the court approved the trustee’s accounting for the period February 17, 2005 through August 31, 2006. In a second, separate order, the court also approved $23,040 in attorney fees payable to Paul. F. Smith for services performed on behalf of the trust, and awarded the trust sanctions against Sabol in the amount of $8,532 for legal fees incurred in defending against frivolous motions filed by Sabol and the internment lawsuits. On October 16, 2006, the court clerk mailed to the parties notice of the order granting attorney fees and imposing sanctions. The record does not indicate that either party received notice of entry of the order approving the accounting.
On October 13, 2006, Sabol filed a motion for hearing de novo and for reconsideration. On November 3, 2006, Sabol filed an amended motion for order setting aside approval of accounting. The matter was eventually heard on January 23, 2007, by Commissioner Robert Fowler sitting as judge pro tempore. The court denied Sabol’s motion, stating that there were no grounds upon which to grant the motion because Sabol had presented nothing new. Sabol filed this appeal on February 22, 2007.
The motion did not seek to set aside the separate order approving attorney fees and assessing sanctions.
Discussion
1. Appealability
We deem this appeal to be from the denial of a statutory motion to vacate the judgment and enter a new judgment. (Code Civ. Proc., § 663 [motion based upon an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts”].) It is arguable that Sabol’s October 13 and November 3, 2006, motions were actually motions for a new trial, and it is well established that the denial of a motion for a new trial is not appealable separately from the judgment. (Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1633, fn. 1.) However, because the motions filed by Sabol acting in propria persona could possibly be construed either way, and because it appears that Sabol could have directly appealed at least from the order approving the accounting, we resolve any doubts here in favor of appealability.
2. Standard of Review
In this appeal from the January 23, 2007, order denying Sabol’s motion to vacate the trial court’s ruling approving the trustee’s accounting and enter a new ruling, it is our task to determine whether the facts found by the trial court justify the trial court’s legal conclusions supporting its ruling. In other words, we accept as true any findings of fact made by the trial court and simply determine whether the conclusions of law drawn from those facts are correct. (See Rounds v. Dippolito (1949) 94 Cal.App.2d 412, 414.)
3. Approval of Accounting
Sabol contends the trial court erred in approving the trustee’s accounting of trust assets and transactions for the period February 17, 2005 through August 31, 2006. As explained above, we must determine whether the trial court’s findings of fact support its legal conclusions. Here, neither party requested a statement of decision or findings of fact, and the trial court made none. The court’s October 16, 2006, written ruling approving the accounting is quoted here in its entirety:
“Patrick O’Brien as Trustee of the Frances Sabol Family Trust having filed his accounting for the period February 17, 2005 through August 31, 2006, and the same having come on for hearing on October 10, 2006 in Department MPR 2, the Honorable Kenneth G. Ziebarth presiding, the Court finds that:
“1. Notice of said hearing has been given as required by law; and
“2. All acts and transactions of Patrick O’Brien during the period of said accounting are truly shown and should be approved.
“THEREFORE, IT IS ORDERED AND ADJUDGED that:
“1. The accounting for the Frances Sabol Family Trust for the period February 17, 2005 through August 31, 2006 is hereby approved, except for the matter of the amount of the trustee’s fees that have been paid; and
“2. The acts and transactions of Patrick O’Brien, the trustee of the Frances Sabol Family Trust during the period beginning February 17, 2005 and ending August 31, 2006, as set forth in said accounting, are hereby approved except for the amount of the amount of the [sic] trustee’s fees that have been paid.”
The most that can be said is that the court impliedly made findings of fact that proper notice had been given and that the trustee had properly accounted for his acts and all transactions on the trust. Given that we must assume the correctness of these findings of fact, Sabol provides no legal rationale for this court to reverse the trial court’s approval of the accounting. “[A]n ‘order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’ [Citation.]” (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) “The burden of affirmatively demonstrating error is on the appellant.” (Fundamental Investment Etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) Because Sabol has not affirmatively demonstrated, by showing that the trial court’s findings of fact do not support its conclusions of law, that the trial court erred in approving the trustee’s accounting, we affirm the trial court’s ruling on this matter.
Sabol’s 45-page opening brief and 21-page responsive brief raise a large number of issues that we cannot consider, based on the very narrow issue framed by the notice of appeal and on the rules for appealability as set forth in Code of Civil Procedure section 904.1.
4. Payment of Attorney Fees and Imposition of Sanctions on Sabol
Sabol does not fare any better regarding the trial court’s ruling on the attorney fees and sanctions issues. The October 16, 2006, written ruling is as follows:
“Attorney Paul F. Smith has submitted his billing to the Trustee, Patrick O’Brien, for the legal services he claims he performed on behalf of the subject trust during the period from February 17, 2005 through August 31, 2006. The net amount of the billing is $22,040.00 which consists of a total of 128 hours at $180.00 per hour which amounts to $23,040.00 less a retainer already paid of $1000.00.
“The net amount owed of $22,040.00 includes the amounts of $5,112.00 defending the internment issue raised by David E. Sabol and also $3,420.00 defending various motions brought by David E. Sabol. The total of those two amounts is $8,532.00.
“This court is satisfied that the services rendered by Mr. Smith on behalf of the trust were necessary and his charges are reasonable. Therefore the trustee may proceed to pay to Mr. Smith the net amount of $22,040.00 out of the remaining funds still held in the trust.
“If the trust receives any additional funds in the future from the bankruptcy matter, before any additional distributions are made to the beneficiaries, the amount of $8,532.00 should be deducted from the share due to David E. Sabol who caused the trust to incur that expense due to Mr. Sabol’s frivolous lawsuits and motions.”
As above, the court’s implied findings of facts are that the services rendered to the trust by the attorney were necessary and the charges reasonable, and that Sabol caused the trust to incur legal expenses by filing frivolous lawsuits and motions. Given that we assume these findings of fact to be true, Sabol has not demonstrated that the trial court erred when it authorized the payment of attorney fees and imposed sanctions on Sabol. We therefore must affirm the trial court’s rulings on these matters.
Disposition
The judgment of the trial court is affirmed. The trustee is awarded his costs on appeal.
We concur: McKINSTER, J., GAUT, J.