Opinion
A098377.
7-10-2003
Estate of JUNE D. SCHNACKE, Deceased. WILLIAM LOCKE-PADDON, Petitioner and Respondent, v. MARIA BORINA, Claimant and Appellant.
We have before us an appeal taken from an order in a probate proceeding that struck and dismissed a complaint by appellant as a "creditor" of the decedents estate. We cannot decipher any cogent argument or reason to grant reversal in appellants brief, and therefore must affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
After the death of the decedent, June Schnacke, on June 6, 2000, respondent filed a petition for probate of will and for letters testamentary on July 19, 2000. In a subsequently filed notice of newly discovered heirs, appellant, among others in her immediate family, was identified as a first cousin, once removed, of the decedent, and thus entitled to notice of administration in the proceeding.
On March 28, 2001, appellant, acting in pro per, filed a notice of creditors claim on the decedents estate on behalf of herself and other identified members of the "Borina Family" of Croatia, in the amount of $ 400,000. The creditors claim was rejected by the special administrator on April 10, 2001.
A creditors claim on real property was filed by appellant, again on behalf of herself and specified members of the Borina family, on July 3, 2001. The claim asserted that appellants grandfather Patrick Borina and the decedents father Nickolas Borina were brothers who immigrated to this country and invested together in "farmland and two houses." Patrick Borina subsequently returned to Europe. His brother Nickolas remained in the United States, and upon his death left the real property to his two daughters, one of them the decedent, as life estates. Thus, appellant claimed that the heirs of Patrick Borina are "creditors" "in 100-acre farmland and one farm house."
The special administrator filed a petition for instructions and concurrently a "motion to strike complaint" on July 31, 2001. Respondent asked the court to resolve "whether the subject document is a creditors claim or a complaint," and, if "deemed to be a complaint," to strike the pleading. Respondent asserted that the "complaint" was signed and filed by appellant alone, although she purported to represent other named parties, without any indication of her status as "an active member of the California State Bar." Following a hearing on the petition and motion on September 11, 2001, at which appellant did not appear after notice to her had been properly given, the court found that the "document titled Creditors Clime on Real Property (sic) is a complaint," and must be "stricken in its entirety with respect to all claimants and plaintiffs named therein and without leave to amend."
Appellant filed a motion for reconsideration, supported by allegations that she was late for the hearing the morning of September 11, 2001, due to the "tragedy on American soil" that day, the attendant confusion and stress, and her failure to obtain a suitable parking space. The motion for reconsideration was denied after a hearing on October 16, 2001, and the court subsequently filed an order dismissing the complaint at respondents request. This appeal followed.
DISCUSSION
In her brief, appellant reiterates that on September 11, 2001, she "didnt know what is [sic] going on that morning," thought the proceedings might be canceled, and was late for the hearing without "negligence" after she was unable to "find parking." Appellant then proceeds to profess that the decedents death and her subsequent cremation were marked by suspicious circumstances and should be investigated by the district attorney. Finally, she articulates in greater detail, but still without clarity, the basis for her claim of inheritance through her grandfather, the brother of the decedents father: Two brothers, Patrick and Nickolas Borina, "arrived together in USA long time ago," purchased land together, "worked very hard as farmers," and invested their profits in "new land or residential properties." Decedent June Schnacke was one of two daughters of Nickolas Borina, but neither she nor her sister had children. Meanwhile, appellants grandfather Patrick Borina returned to (what is now) Croatia and had nine sons, two of whom worked at some time on the farm for Nickolas Borina "with no pay." According to the brief, the Borina family members then had a disagreement or misunderstanding among them, such that subsequent events and the line of succession to the decedents estate is apparently ambiguous and unsubstantiated. Appellant contends without additional supporting facts that somehow a life estate was created "between USA-Schnacke Estate and Croatian-Borina family."
No particular claim of error associated with the trial courts ruling on the motion to strike appellants complaint is mentioned in her opening brief. She has also failed to provide us with any reference to the record or citation to legal authority. She has thus disregarded fundamental rules of appellate practice. Recitation of evidence in a brief must be supported by appropriate reference to the record (Cal. Rules of Court, rule 14(a)(1)(C)). "We are not required to make an independent, unassisted study of the record in search of error or grounds to challenge a trial courts action." (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.) "It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal." (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) "If no citation is furnished on a particular point, the court may treat it as waived. [Citation.]" (Ibid.)
Further, " Where a point is merely asserted . . . without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court. [Citation.] [Citation.]" (People v. Morse (1993) 21 Cal.App.4th 259, 275, fn. omitted.) "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) We must adhere to the rule that, " . . . an "order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." [Citation.] The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error. [Citation.]" (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398.) Without citation to the record or authority by appellant to support her claim of prejudicial error, we " . . . ". . . may treat it as waived, and pass it without consideration." [Citation.] . . . [Citation.]" (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; see also Spitler v. Childrens Institute International (1992) 11 Cal.App.4th 432, 442.)
Finally, appellant has not presented to us any issues for resolution or intelligible legal argument to be addressed. She has only vaguely made claims to the estate, and seems to protest that her failure to make a timely appearance at the hearing on September 11, 2001, was excused by the tragic events that day. "Generally, asserted grounds for appeal that are unsupported by any citation to authority and that merely complain of error without presenting a coherent legal argument are deemed abandoned and unworthy of discussion." (Mares v. Baughman (2001) 92 Cal.App.4th 672, 680.) "It is well established that as an appellate court we are not required to consider matters urged in the briefs where no pertinent argument is made in support thereof." (People ex rel. Sepulveda v. Highland Fed. Savings & Loan (1993) 14 Cal.App.4th 1692, 1703, fn. 5.)
We realize that appellant is a pro per litigant, who unfortunately has not been able to obtain representation and is not versed in imparting arguments to the court. Nevertheless, we cannot overlook grave deficiencies in the presentation of her case which adversely affect our review on appeal. " When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. (Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, 638 ; Foster v. Civil Service Com. (1983) 142 Cal. App. 3d 444, 449 .)" (Harding v. Collazo (1986) 177 Cal. App. 3d 1044, 1056, 223 Cal. Rptr. 329.) We are not inclined to act as counsel for appellant and furnish a legal argument as to how the trial courts rulings constituted error, and cannot do so in any event where she has failed to even point us in the direction of an issue to be resolved or legal principles to be considered. (Mansell v. Board of Administration, supra, 30 Cal.App.4th 539, 545-546; In re Marriage of Schroeder (1987) 192 Cal. App. 3d 1154, 1164, 238 Cal. Rptr. 12; Green v. Green (1963) 215 Cal. App. 2d 31, 35, 30 Cal. Rptr. 30.) Therefore, appellants apparent basic and unsupported position that the trial court somehow erred by granting respondents motion to strike the pleading and dismiss her action must be deemed waived or without merit. (Guthrey v. State of California, supra, 63 Cal.App.4th 1108, 1115-1116; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Mansell v. Board of Administration, supra, at p. 545;Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
We have reviewed the record in any event and find no apparent error. As respondent claimed in the trial court, appellant filed a defective action contesting the distribution of the estate on behalf of herself and other named plaintiffs, without any indication of her legal capacity to do so as a licensed member of the California State Bar, and without the signature of those plaintiffs who were not represented by counsel. (See Code Civ. Proc., § 128.7; Bus. & Prof. Code, § 6125; Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 547; Russell v. Dopp (1995) 36 Cal.App.4th 765, 774; Abar v. Rogers (1981) 124 Cal. App. 3d 862, 865, 177 Cal. Rptr. 655.) She also did not present proper grounds in support of her motion for reconsideration. "Section 1008, subdivision (a) provides that . . . any party affected by [an] order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. To be entitled to reconsideration, a party should show that (1) evidence of new or different facts exist, and (2) the party has a satisfactory explanation for failing to produce such evidence at an earlier time." (Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160-1161.) Here, the affidavit submitted by appellant is entirely devoid of a statement of new or different facts, circumstances or law. (White v. Lieberman (2002) 103 Cal.App.4th 210, 219.) She merely suggested an excuse for her failure to appear at the prior hearing.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., and Margulies, J. --------------- Notes: Appellant acknowledges that she is not a member of the California State Bar.