Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. PR042036
RUSHING, P.J.
Appellant James Valentine appeals a judgment entered after a hearing settling the fourth account of guardian and respondent Hal S. Valentine seeks review of the superior court’s order that he pay Hal S. compensatory damages in the amount of $129,050.00, based, in part, upon Valentine’s unreasonable and bad-faith assertion of meritless objections to the third account in violation of Probate Code section 2622.5.
Statement of the Facts and Case
Respondent Hal S. is the guardian and father of minor Kurt S. was appointed guardian of Kurt and his brother Derek, now adults, in 2001.
Appellant James Valentine is the suspended trustee of a life insurance trust (hereinafter referred to as the “KMP Trust”) established by Kurt and Derek’s mother, Kelsey Phipps, to provide for the “health, maintenance, education, travel, and welfare, and general welfare, ” of the boys at the time of her death. Phipps died in a plane crash on October 2, 2000.
Upon Phipps’s death in 2000, Hal S. became the single guardian of the boys. Valentine served as trustee of the KMP Trustee, and provided support for the boys pursuant to the provisions of the trust. In May 2001, the trust was funded with $20,524,234 from the proceeds of Phipps’s life insurance policy. Valentine initially transferred $54,000 to Kurt’s guardianship account on May 31, 2001, and continued to disperse $6,000 per month to the account until the time he was suspended as trustee in March 2007.
In January 2007, Hal S. filed his third account and report of guardian and petition for attorney fees that included the period from October 2004 to October 2006. Valentine filed objections to the third account in March 2007, and filed amended objections in April 2007. Hal S. filed a reply to the objections in June 2007 asserting that the objections were without merit and that pursuant to Probate Code section 2622, Valentine had no standing to assert his objections. In August 2007, the court ruled that Valentine was an “interested party” under Probate Code section 2622, and permitted Valentine to proceed to trial on the objections.
Probate Code, section 2622 provides: “The ward or conservatee, the spouse of the ward or the spouse or domestic partner of the conservatee, any relative or friend of the ward or conservatee, or any creditor or other interested party may file written objections to the account of the guardian or conservator, stating the items of the account to which objection is made and the basis for the objection.”
After Valentine’s case in chief, the court granted Hal S.’s motion for judgment under Code of Civil Procedure section 631.8. Hal S. then moved for attorney fees and costs under Probate Code section 2622.5, which provides compensation if the court determines objections are brought in bad faith.
An evidentiary hearing was held in July 2008 on the issue of attorney fees. The court found that Valentine’s objections were unreasonable and were filed in bad faith. The court ordered Valentine to pay attorney fees and costs to Hal S. in the amount of $77,573.40.
Valentine filed two notices of appeal in this court. The first was case number H032581, and concerned the trial court’s denial of his objections, and approval of Hal S, ’s third account. The second appeal was case number H033376, and concerned the court’s award of attorney fees and costs to Hal S. pursuant to Probate Code section 2622.5.
In September 2009, this court affirmed the judgment of the trial court in approving the third account, and affirmed the trial court’s order of that Valentine pay Hal S. attorney fees and costs in the amount of $77,573.40. (Guardianship of K.S. (2009) 177 Cal.App.4th 1525.)
On October 15, 2009, Hal S. filed this fourth account and report of guardian for the period beginning October 22, 2006 and ending July 7, 2009, the date on which Kurt turned 18.
Notice of the hearing, which was set on November 16, 2009, was mailed to Valentine’s attorney of record, Francis B. Doyle.
The fourth account contained reports of financial transactions for the guardianship for the period of October 22, 2006 through October 15, 2009. The fourth account also stated costs associated with Hal S. defending against Valentine’s bad faith objections to the third account, as well as the two appeals Valentine brought in this court. The fourth account petition requested the court approve the fourth account, find notice was made as required by law, order that Hal S.’s counsel, Douglas P. Barnes be paid the sum of $3,180.00 in fees for the preparation of the fourth account, and order any other relief it considered proper.
The hearing on the fourth account was held on November 16, 2009. Hal S. appeared in pro per, and neither Valentine, nor his attorney appeared. At the hearing, the court made the following findings: (1) notice of the hearing was given as required by law; (2) all the allegations as contained in the petition are true; (3) the account and report are true; (4) the petition for settlement and payment of statutory fees is granted; (5) attorney fees are approved as prayed; and (6) James Valentine is to pay $129,050.00. The minute order also provided that Hal S.’s counsel, Douglas Barnes, was to prepare an order regarding Valentine’s obligation to pay $129,050.00 for the court’s signature.
On December 7, 2009, Barnes sent a proposed order to the court for approval and signature. On December 14, 2009, the court signed the judgment after hearing settling fourth account of guardian which stated: “Good cause appearing. [¶] James Valentine shall pay Hal [S.] the sum of $129,050.00 with 30 days as reimbursement for costs and expenses incurred in responding to Mr. Valentine’s bad faith objections....”
In January 2010, Barnes sent a letter to Valentine’s attorney, Francis Doyle, demanding payment of the ordered amount of $129,050.00. In February, Valentine filed an ex parte application to vacate a portion of the order approving fourth accounting of this guardianship as it relates to an award for attorney fees against James Valentine. The court denied Valentine’s ex parte application. Valentine filed a timely notice of appeal.
Discussion
Valentine makes the following claims on appeal: (1) he is not an “interested party” with regard to the fourth account, therefore, the probate court lacked jurisdiction to increase the judgment against him from $77,573.40 to $129,050.00; (2) he did not receive proper notice and a fair hearing on the increased costs assessed; (3) the judgment amount should have been ordered paid to the guardianship, rather than to Hal S. personally; and (4) the court erred in failing to vacate the judgment pursuant to Code of Civil Procedure section 473, subdivision (b) for Valentine’s attorney’s mistake.
A fundamental rule of appellate review is that “ ‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.) The party challenging the order has the burden to show that the court abused its discretion or that the order was not supported by substantial evidence. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566; Estate of Leslie (1984) 37 Cal.3d 186, 201.)
Valentine as an Interested Party
Valentine asserts on appeal that he is not an “interested party” with regard to the fourth account. Therefore, the probate court lacked jurisdiction to increase the judgment against him from $77,573.40 to $129,050.00. Valentine offers the fact that he made no objections to the fourth account as the only basis for his argument that he is not an “interested party.”
A “ ‘interested party’ ” is defined in the Probate Code as follows: “An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate of a decedent which may be affected by the proceeding.” (Probate Code, § 48, subd. (a)(1). However, Probate Code section 48, subdivision (b) provides, “The meaning of ‘interested party’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”
While it is true Valentine filed no objections to the fourth account, this fact does not itself define whether he is an “interested party” under Probate Code, section 48. Valentine was previously deemed an interested party in August 2007 during proceedings on the third account. It was during these proceedings that Valentine brought bad faith objections, subjecting him to liability for attorney fees and costs in the amount of $77,573.40. Valentine continued to litigate the issue, bringing two appeals in this court. Hal S. incurred additional costs associated with defending those appeals, which he ultimately won. This period was covered by the fourth account, and the expenses incurred were clearly outlined therein. By his own actions of continuing litigation that caused Hal S. to incur costs, Valentine remained an “interested party” subject to the jurisdiction of the court.
Additionally, Valentine was still acting as trustee, and distributed funds to the guardianship during the period of the Fourth Account, from November 2006 until his suspension in March 2007. This fact alone makes Valentine an in “interested party” for purposes of this litigation.
Notice
Valentine asserts he was not provided proper notice of Hal S.’s request to seek additional monies be added to the judgment of $77,573.40 in the petition for approval of the fourth account.
Here, Valentine relies on two theories to support his argument that notice was insufficient. First, he asserts notice was not sufficient because the petition to approve the fourth account was sent by mail to Francis Doyle, Valentine’s attorney of record, rather than to Valentine himself. Valentine makes this argument unsupported by legal authority. The appellant’s burden on appeal is to present argument supported by relevant legal authority as to each issue raised on appeal. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
The second basis for Valentine’s argument that notice was insufficient is that the prayer in the petition did not specifically state that additional monies were being sought from Valentine. In support of this position, Valentine cites an inapplicable California Rule of Court related to the title of pleadings and orders (Cal. Rules of Court, rule 7.102), and a Supreme Court case that states that notice should be reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present objections. (Mullane v. Century Hanover Bank & Trust Co. (1950) 339 U.S. 306).
Here, the prayer in the petition sought court approval of the fourth account, a finding that notice was made as required by law, an order that Hal S.’s counsel, Douglas P. Barnes be paid the sum of $3,180.00 in fees for the preparation of the fourth account, and that the court order any other relief it considered proper.
In addition, the petition itself contained a specific request for reimbursement from Valentine of a total of $129,050.76 that Hal S. spent on behalf of the guardianship to defend against Valentine’s bad faith objections to the third account, and the two appeals Valentine brought in this court. The petition states as follows: “[Hal S.] paid Mr. Coward $85,744.50 from his personal funds. Attorney John H. Coward provided legal services for successfully defending the Third Accounting from Valentine’s bad faith objections. A portion of the total amount [Hal S.] paid Coward has already been reviewed and approved by the Court as part of the $77,573.40 judgment against Valentine per the Court’s July 30, 2008 order. Additional fees and costs of $8,169.10 were incurred for the evidentiary hearing on fees and subsequent efforts to collect the judgment before the appeal stayed a debtor’s examination and collection. [¶] [Hal S.] has paid attorney Moore $43,306.26 from his own personal funds. [Hal S.] contractually agreed to two fixed fee contracts for the payment of $25,000 and $18,000 plus costs for representing the guardianship in the two appeals previously discussed. This successful representation included several appellate briefs and oral arguments before the Court of Appeal.... [¶] Valentine should be held accountable by the Court for the full $129,050.76....”
In re Guardianship of K.S., supra, 177 Cal.App.4th 1525
During oral argument on this case, Valentine’s attorney, Francis Doyle asserted new arguments, citing Rules of Court, and sections of the Code of Civil Procedure that were not included in his briefs, or provided to Hal S. prior to argument. When members of the court questioned Doyle about whether he briefed these new arguments, or provided notice to the opposition, Doyle replied that he had not, and requested permission to file a letter brief with the court. Doyle’s eleventh hour request to file a letter brief after asserting un-briefed and unnoticed arguments before this court is conduct similar to the practice Doyle has so prominently displayed in his two previous appeals. (See In re Guardianship of K.S., supra, 177 Cal.App.4th 152.) We hereby deny Doyle’s request.
The petition’s inclusion of a general request for additional relief as the court considers proper, as well as its specific provisions stated above provided Valentine with adequate notice. The petition made it clear that Hal S. was seeking additional monies in reimbursement costs associated with defending against Valentine’s bad faith objections to the third account, and the defense of the two appeals such that Valentine was apprised of pendency of the action, and afforded an opportunity to present objections. (Mullane v. Century Hanover Bank & Trust Co., supra, 339 U.S. 306).
We find the probate court correctly concluded that notice to Valentine was properly given here.
Payment of the Judgment to Hal S. Personally
Valentine argues on appeal that the signed order requiring Valentine to pay $129,050.00 to Hal S. personally does not reflect the court’s intent; rather, the minute order reflects that the payment of the judgment was to be made to the guardianship, rather than Hal S. personally. Therefore, according to Valentine, the signed order was entered in error, and must be corrected to reflect the court’s intent.
It is Valentine’s burden to affirmatively establish error on appeal. Here, Valentine simply states, “Judge Burdick clearly intended that the guardianship be paid the $129,050.00 and this was not reflected in the actual written judgment submitted to him for signature on December 14, 2009.” Valentine provides no additional argument, or citation to the record as support for this position. As a result, we cannot move beyond our starting presumption that appealed judgments and orders are correct. (Denham v. Superior Court, supra, 2 Cal.3d 557 at p. 564.)
Moreover, Code of Civil Procedure, section 473, subdivision (d) provides a procedural mechanism by which Valentine could have requested the court “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed....” It appears from the record that Valentine made no such request for relief from the probate court.
We find no inconsistency between the minute order, which provides, “James Valentine [is to] pay... $129,050.00, ” and the order signed by the court, which provides, “…Good cause appearing, James Valentine shall pay Hal [S.] the sum of $129,050.00 with 30 days as reimbursement for costs and expenses incurred in responding to Mr. Valentine’s bad faith objections....” Moreover, the petition to approve the Fourth Account specifically sought personal reimbursement of funds Hal S. spend in defending the third account. In ordering that “all the allegations as contained in the Petition are true” and “the Account and Report” as true, the court impliedly confirmed that the payment was made directly to Hal S., rather than the Guardianship.
In any event, we presume the court reviewed the proposed order, and approved its contents before signing it. Valentine has not established error in the content of court’s judgment.
Vacating the Judgment Pursuant to Code of Civil Procedure section 473, subdivision (b)
Valentine asserts in the event this court deems him an interested party, the notice proper, and the order requiring him to pay $129,050.00 to Hal S. personally was correct, the probate court erred in failing to vacate the judgment under Code of Civil Procedure, section 473, subdivision (b) due to his attorney’s mistake.
Code of Civil Procedure, section 473, subdivision (b) provides, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other legal proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The section requires the application for relief be accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.
Here, there is no evidence in the record that Francis Doyle or Valentine filed any application with the probate court for relief under Code of Civil Procedure, section 473, subdivision (b). Certainly, the record contains no sworn affidavit of Francis Doyle attesting to his mistake, inadvertence, surprise, or neglect in failing to appear with this client and present objections at the hearing to approve the fourth account. Having never brought a petition for relief due to attorney mistake in the probate court, Valentine cannot now claim the court erred in failing to grant such relief.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.