Opinion
C078580
01-24-2017
WENDELL G. LEWIS, Plaintiff and Appellant, v. RUSSELL L. LEWIS, AS TRUSTEE, ETC.,, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 27704)
In exchange for a payment of $20,000, to be made in two installments and deducted from his portion of an inheritance, pro per plaintiff Wendell G. Lewis agreed with his brother Russell L. Lewis, the successor trustee of a trust created by their parents, to vacate the family property and residence so it could be sold and the proceeds distributed according to the terms of the trust. After vacating the property, having received only half the money, Wendell filed a petition to compel an accounting, to remove and surcharge Russell as the trustee, and to appoint a successor trustee for the trust. Russell counter petitioned, and, following a bench trial in which Wendell represented himself, the court entered judgment against Wendell and in favor of Russell.
Without a single citation to authority, Wendell appeals, claiming the court ruled incorrectly based on the facts and the evidence, and that it discriminated against him based on his speech impediment and his pro per status. We affirm the judgment.
FACTS AND PROCEEDINGS
Wendell lived with his parents at their property in Red Bluff for several years. Together, they were partners in a trucking business named Lewis Trucking, and, according to Wendell, some of the partnership's equipment was stored on the property.
The real property was included in a trust created by the parents. Russell was named successor trustee of the trust, and Wendell, Russell, and their three siblings were the trust's beneficiaries.
As trustee, Russell sought to sell the property and to distribute the proceeds to the siblings under the trust. Before the property could be marketed for sale, however, Wendell had to vacate the premises and the property had to be cleaned and updated.
In August 2012, Wendell and Russell executed a Settlement Agreement and Release for Wendell to vacate the property in exchange for $20,000, which would constitute a partial distribution of his inheritance. Briefly summarized, under the terms of the Settlement Agreement, Wendell agreed to accept $10,000 to leave the property by August 31, 2012. If he fully vacated by noon that day, he would be paid an additional $10,000. If he did not, the second $10,000 installment would be reduced by $500 for each day he remained until September 5, at which point the entire second $10,000 payment would be retained as liquidated damages and Wendell's portion of the inheritance would be reduced accordingly.
Wendell was paid the first $10,000 installment under the Settlement Agreement, but he failed to leave the property by August 31 and was not paid the second installment. He claimed he was entitled to $9,500 of the second $10,000 installment because he vacated only a day late.
According to the register of actions, Wendell filed a petition in Shasta County Superior Court in October 2013 to compel an accounting, to remove and surcharge Russell as trustee, and to appoint a successor trustee for the trust. A month later, Russell responded and filed a counter petition for instructions, for approval of a first and final accounting, to establish a special needs trust for his disabled brother, and for distribution of the trust. Neither the petition nor the counter petition appears in the record.
In February 2014, Russell propounded a first set of request for admissions on Wendell, which he failed to timely answer. Russell then moved to have the request for admissions deemed admitted. The court granted the motion. Among other things, Wendell was deemed to have admitted that he failed to vacate the trust realty by August 31, 2012, that he caused the trust irreparable damages, that he intentionally and maliciously damaged and vandalized the trust realty in an amount exceeding $10,000, that he caused $27,349.73 in damages to the trust, and that he took items belonging to the trust such as a generator, swamp cooler, craftsman tool cabinet, chain saw, weed eater, an engine lift, a Black and Decker drill, and a steam cleaner.
Trial was originally scheduled for November 7, 2014. Wendell was present in court with Richard Dagres, a friend who was not a licensed attorney. Dagres advised the court that he was special counsel for Wendell. Upon learning that Wendell's retained counsel no longer represented him, the court continued the trial to December 15 and gave him additional time to file his trial brief. The court also informed Wendell that Dagres could assist him, but he could not speak on his behalf since Dagres was unlicensed.
Wendell represented himself at trial on December 15. Based largely on the requests for admissions that were deemed admitted, in an amended decision the court found Wendell had breached the Settlement Agreement and ruled that judgment should be entered in Russell's favor. It does not appear Wendell objected to the court's amended statement of decision. A formal judgment was entered in January 2015, and Wendell timely appealed.
DISCUSSION
I
Waiver
At the outset, we note that Wendell's brief is completely devoid of a single reference to any authority supporting his arguments. One cannot, however, "simply say the court erred, and leave it up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) Rather, "[a]ppellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [court declined to address argument on issue that appellant had failed to provide more than a brief recitation of the argument in his brief without supporting authority].)
Given Wendell's cursory discussion of the issues, without citation to any authority, we deem his arguments waived. But even if not waived, we conclude none of Wendell's challenges have merit.
"The judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because of this presumption of correctness, error must be affirmatively shown. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) Thus, Wendell must affirmatively demonstrate prejudicial or reversible error based on sufficient legal argument supported by citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) A review of the briefs and the record on appeal reveals Wendell has failed to meet this heavy burden.
II
Findings of Fact and Conclusions of Law
Wendell's first contention--that the court did not rule "correctly based on the facts and evidence" in light of the Settlement Agreement and the trust, which he mistakenly identifies as "the will"--is without merit. The factual and legal issues addressed in the court's statement of decision are amply supported by the evidence at trial.
Where a court issues a written statement of decision following a bench trial setting forth the factual and legal basis for the decision (Code Civ. Proc., § 632), like the court did here, "any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) Findings of fact, moreover, are liberally construed to support the judgment. (Estate of Young (2008) 160 Cal.App.4th 62, 76.)
In this case, the court's factual findings and legal conclusions in its amended statement of decision rested on the requests for admissions Wendell was deemed to have admitted when he failed to timely respond to Russell's discovery request. The court could rely on the admitted matters to support its decision when ruling on the petition and counter petition.
Under Code of Civil Procedure section 2033.010, a party may request that another litigant "admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties." If a litigant fails to timely respond, the propounding party may move the court for an order deeming the truth of any matters specified in the requests admitted. (Civ. Proc. Code, § 2033.230, subd. (b).)
Here, Wendell was deemed to have admitted, among other things, that he continued to reside at the trust property after August 31, 2012, the date by which he agreed to vacate under the Settlement Agreement, thereby causing the trust irreparable damages, that he intentionally damaged the property in excess of $10,000, that his activities in fact caused the trust damages in the sum of $27,349.73, and that he seized items belonging to the trust including a generator, swamp cooler, craftsman tool cabinet, chain saw, weed eater, engine lift, Black and Decker drill, and steam cleaner. These admissions constitute substantial evidence to support the court's findings that he breached the Settlement Agreement and caused damages to the trust and its property.
Although conflicting evidence from acquaintances and friends of Wendell appears in the record, the court was justified in disregarding such evidence. "Matters that are admitted or deemed admitted through [request for admissions] discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence." (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.)
And, while the discovery statute does provide a mechanism for withdrawing a deemed admission (Code Civ. Proc., §2033.300, subds. (a) & (b) [a party may withdraw an admission made in response to a request for admission only on leave of court granted after notice to all parties; court may permit withdrawal of an admission only if the admission was the result of mistake, inadvertence, or excusable neglect and the opposing party will not be substantially prejudiced]; see also Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978, 983 [statute permits withdrawal of deemed admissions]), the record discloses no noticed motion or request to withdraw the admissions. Wendell's belated attempt to submit a response, without more, is thus unavailing.
Wendell, moreover, was not exempt from the foregoing rules because he represented himself during the litigation. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A party who chooses to act as his own attorney " 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' " (Id. at p. 1247.) "Thus, as is the case with attorneys, pro per litigants must follow correct rules of procedure." (Ibid.; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party "held to the same restrictive procedural rules as an attorney"].) Wendell, then, was not entitled to disregard the rules for timely responding to discovery and he was not immune from the consequences of a failure to do so. Nor was he entitled to submit belated responses to the request for admissions without first moving the court to have the deemed admissions withdrawn.
As an appellant challenging the trial court's factual determinations following a nonjury trial, Wendall was required to "marshal all of the record evidence relevant to the point in question and [to] affirmatively demonstrate its insufficiency to sustain the challenged finding." (Altavion, Inc. v. Konica Minolta Sys. Lab. Inc. (2014) 226 Cal.App.4th 26, 43.) This he has not done. We therefore conclude the record contains substantial evidentiary support for the trial court's decision.
III
Fundamental Fairness of Proceedings
Wendell next challenges the fairness of the proceedings below. According to him, the court prevented him from having his legal advisor speak on his behalf and he could not speak for himself due to a speech impediment. He also contends the court should have continued the trial to accommodate his speech impediment. We discern no fundamental unfairness in the proceedings.
Wendell sought to have Dagres represent him during trial. Upon further questioning by the court, it became apparent that Dagres was not a licensed attorney. Although the court advised Dagres that he could assist Wendell, the court prohibited him from speaking on Wendell's behalf at the trial. The court's prohibition was proper.
It has long been established that an unlicensed person cannot appear in court for another person. (See e.g., Russell v. Dopp (1995) 36 Cal.App.4th 765, 775 ["The general American rule is that an unlicensed person cannot appear in court for another person, and that the resulting judgment is a nullity"]; Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830-1831 [persons may represent their own interests in legal proceedings but may not practice law for another in California unless they are active members of the state bar].) Two public policies underlie this rule. First, attorneys must be licensed so that the public is protected from being advised and represented by persons who are not qualified to practice law. (Russell, supra, 36 Cal.App.4th at p. 773.) Second, the litigation of cases by unlicensed persons threatens the integrity of the judicial process itself. (Ibid.) Based on this long standing rule, the proceedings were not fundamentally unfair because the court properly ruled Dagres could not represent Wendell during trial.
Wendell also claims the court should have continued the trial to accommodate his speech impediment, and impliedly to retain other counsel. The trial court, however, had already continued the trial a month after informing Wendell that Dagres could not represent him. The trial was originally scheduled for November 7. Upon learning that Dagres was unlicensed, the court continued the trial to December 15, and allowed Wendell additional time to submit a trial brief. That Wendell did not secure a licensed attorney during that time does not mean the proceedings on December 15 were unfair.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: NICHOLSON, Acting P. J. DUARTE, J.