Opinion
G058635
08-30-2021
Conservatorship of the Estate of JACK RICHARD FINNEGAN. RICHARD A. MARSHACK, as Trustee in Bankruptcy, etc., Petitioner and Respondent, v. JACK RICHARD FINNEGAN, Objector and Appellant.
Jack Richard Finnegan, in pro. per., for Objector and Appellant. Marshack Hays, D. Edward Hays and Laila Masud for Petitioner and Respondent.
NOT TO BE PUBLISHED
Order Filed 9/16/2021
Appeal from an order of the Superior Court of Orange County No. 30-2019-01047364, Jacki C. Brown, Judge. Affirmed.0
Jack Richard Finnegan, in pro. per., for Objector and Appellant.
Marshack Hays, D. Edward Hays and Laila Masud for Petitioner and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the opinion filed herein on August 30, 2021, be modified as follows:
On page 15, at the end of the final paragraph, add the following footnote:
6 In his opening brief, Finnegan requests that we take judicial notice of various provisions of state and federal law. He did not file a motion seeking judicial notice as required by California Rules of Court, rule 8.252(a). (See United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 528.) In any event, we have discussed all issues raised by Finnegan, citing relevant law.
As so modified, there is no change in judgment. The petition for rehearing is DENIED.
OPINION
FYBEL, J.
INTRODUCTION
Jack Richard Finnegan appeals from the order granting a petition for the appointment of a conservator of Finnegan's estate. The petition was filed by Richard A. Marshack, the appointed trustee in Finnegan's bankruptcy case. Finnegan refused to attend the trial on the petition. At trial on the petition, documentary evidence and the testimony of three witnesses, including Marshack, were admitted. More than substantial evidence supported the trial court's finding that Finnegan is substantially unable to manage his own financial resources within the meaning of Probate Code section 1801, subdivision (b).
Finnegan has asserted a litany of contentions in his appellate briefs. We conclude those contentions are without merit and Finnegan, who provided no record citations or relevant legal analysis in his appellate briefs, has failed to meet his burden of demonstrating error. We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
Facts in this section are taken from testimony given at trial on the petition seeking the appointment of a conservator of Finnegan's estate and from a declaration filed by one of Marshack's attorneys in opposition to Finnegan's motion to dismiss that petition.
I.
Summary of Finnegan's Conduct Preceding His Filing for Bankruptcy Protection; Marshack Is Appointed Trustee in the Bankruptcy Action.
In 2011, Finnegan owned real property on Manzanita Drive in Dana Point (the Manzanita property) on which he personally constructed two retaining walls without obtaining required permits. After Finnegan ignored at least eight notices of violation, stop work orders, and criminal citations, he was prosecuted and convicted of several criminal violations and placed on two years' informal probation. Finnegan was ordered to bring the property into compliance with the municipal codes by obtaining permits from the city or removing the walls. After Finnegan disregarded that order, his probation was revoked and substantial monetary fines were assessed against him.
While Finnegan appealed his conviction, the trial court granted the City of Dana Point's petition to appoint a receiver to remedy the violations at the Manzanita property. Finnegan unsuccessfully appealed the appointment of the receiver. After the receiver acted to remedy the issues, he sold the Manzanita property to pay for the cost of repairs and for the costs of the receivership after Finnegan did not pay those costs. The proceeds from the sale of the Manzanita property were insufficient, however, to pay the total of the significant amount of costs and expenses that had been incurred in large part due to Finnegan's litigiousness and lack of cooperation.
Finnegan not only appealed from the order appointing the receiver, but also from the order terminating the receivership; he filed numerous motions in between his appeals. He sued Dana Point City Attorney Patrick Munoz and his associates, a Superior Court judge, and that judge's clerk in federal court, which the district court later dismissed; the Ninth Circuit Court of Appeals dismissed Finnegan's appeal from the dismissal. Finnegan filed a second federal lawsuit against another Superior Court judge and again against Munoz and one of his associates. The case was dismissed, and Finnegan's appeal was unsuccessful. The City of Dana Point incurred significant expenses in defending against Finnegan's actions.
In March 2018, Finnegan filed a voluntary petition for chapter 11 bankruptcy protection in the United States Bankruptcy Court (the bankruptcy action). Two months later, the Office of the United States Trustee appointed Marshack to serve as trustee in the bankruptcy action.
In June 2018, Finnegan filed a motion for disqualification of the bankruptcy judge presiding over his bankruptcy case and the matter was set for hearing. Finnegan did not appear at the hearing and his motion was denied in August 2018.
In June 2018, Finnegan had also filed a notice of appeal in an effort to challenge Marshack's appointment as trustee. Finnegan's appeal was dismissed as untimely. Finnegan's subsequent efforts to seek further review of the appointment order failed. Finnegan also “began to file pleadings in the District Court of the Central District of California, ” which proceedings the district court dismissed for lack of jurisdiction.
In August and September 2018, due to Finnegan's lack of cooperation with Marshack, Marshack successfully sought conversion of the bankruptcy case to a chapter 7 action; Marshack was appointed as chapter 7 trustee.
II.
Finnegan Fails to Participate in the Bankruptcy Action and the Bankruptcy Court Grants Marshack Approval to Petition for the Appointment of a Conservator.
As chapter 7 trustee in the bankruptcy action, Marshack's duties include liquidating assets for the benefit of creditors, analyzing which assets in the estate could be monetized, evaluating claims filed in the bankruptcy action, and making distributions to creditors holding valid claims. Marshack reviewed Finnegan's bankruptcy schedules which showed Finnegan's primary, if not only, asset that could be administered by Marshack to generate money to pay creditors' claims was Finnegan's residence in San Clemente (the San Clemente residence). Finnegan valued the residence at $5 million. Marshack's real estate agent valued it at $1.9 million solely based on public records because Marshack could not gain access to the residence.
Marshack tried to contact Finnegan but was unable to confer with him at all. Although by statute, a debtor must attend the first meeting of creditors, Finnegan failed to appear at the first noticed meeting of creditors in October 2018, and thereafter failed to appear at any of the 21 subsequently scheduled meetings. Notwithstanding an order requiring him to appear for a Federal Rules of Bankruptcy, rule 2004 examination, Finnegan did not appear for the examination and failed to appear at subsequently noticed exams.
Marshack testified that once after a hearing in the instant conservatorship case which Finnegan attended, Marshack tried “desperately to have a conversation” but Finnegan “wouldn't have any part of it” and told Marshack, “You don't have authority.” Marshack testified that a conservatorship would lend credibility and stability to settlement negotiations with creditors and provide the best hope of forestalling the removal of Finnegan from and the sale of the residence. Without a conservatorship, Marshack testified he would have no choice but to arrange for Finnegan to be removed from the San Clemente residence so it could be sold, which result would likely be disastrous for Finnegan because he would be left homeless and with insufficient funds for living expenses.
Throughout the course of the bankruptcy action, Finnegan filed “dozens of pleadings” in which he “consistently t[ook] positions which are unsupported by law or facts, citing unrelated statutes and cases in support of his conclusory statements of law.” Finnegan's litigation tactics, which included seeking the disqualification of a sitting federal United States Bankruptcy Judge, writs of mandate to the bankruptcy court, and the removal of a sitting panel chapter 7 trustee, resulted in the bankruptcy estate incurring additional, otherwise unnecessary administrative expenses.
In September 2018, the bankruptcy court granted Marshack's motion for an order authorizing the filing of a petition in the superior court to determine whether a conservator should be appointed for Finnegan's estate.
III.
The Petition
In January 2019, Marshack filed a petition for the appointment of a conservator of Finnegan's estate in the superior court (the petition). The petition alleged the appointment of a conservator was required because Finnegan was “substantially unable to manage his... financial resources or to resist fraud or undue influence” based on the following summary of supporting facts: “Conservatee filed bankruptcy. Petitioner is the court-appointed Chapter 7 Trustee. All of Mr. Finnegan's assets are property of the bankruptcy estate. Prior to and during the bankruptcy, Mr. Finnegan has filed numerous lawsuits and pleadings which are largely unintelligible and completely lack merit. Such pleadings have resulted in ever-increasing claims which will need to be paid in the bankruptcy case. The only potential asset of the estate may be Mr. Finnegan's residence. If necessary, petitioner will have to seek a bankruptcy court order compelling Mr. Finnegan to vacate and turn over possession of the residence so it can be sold. Due to his advanced age, petitioner would like to avoid such a result. Petitioner takes no position regarding whether Mr. Finnegan should be subject to a conservatorship because he has never met him as a result of conservatee's repeated failures to discharge his duties to meet with and cooperate with the bankruptcy trustee. Conservatee has also repeatedly violated bankruptcy court orders to appear for his sworn examination. Petitioner has a good faith belief that Mr. Finnegan should be evaluated for a potential conservatorship so that he will not be a financial danger to himself.”
IV.
Following a Bench Trial, the Trial Court Grants the Petition.
Trial on the petition was scheduled for December 3, 2019. In his trial setting conference statement, Finnegan requested a jury trial. By the morning of the scheduled trial date, however, Finnegan had not posted jury fees. The trial court explained to Finnegan that he waived the right to a jury trial because he failed to make any effort to timely pay the necessary jury fees. Finnegan did not request reconsideration of the trial court's ruling, state he was indigent, or make any statement about the timeliness of payment of jury fees.
The trial court ordered Finnegan to appear for trial to begin at 11:00 a.m. on December 5, 2019. Finnegan did not appear as ordered and could not be reached by the court clerk or by counsel. The trial court later confirmed that Finnegan had been present at the courthouse earlier that morning at 9:00 a.m. to file an objection to the denial of a jury trial, and that he had voluntarily chosen not to appear for trial. The trial court explained that because Finnegan did not post jury fees, never requested a waiver of jury fees, and did not appear for trial as scheduled, he did not give the trial court the opportunity to consider a waiver of jury fees and the matter therefore would proceed by way of bench trial.
In addition to filing an objection to the denial of a jury trial, Finnegan filed the notice of appeal triggering the instant appeal earlier in the morning before trial began.
Marshack, Munoz, and an engineer who was involved in the Manzanita property litigation testified at trial. Extensive documentary evidence was authenticated by trial testimony and admitted into evidence.
The trial court thereafter granted the petition, stating: “I do find that your evidence, as presented, not only in the exhibits, but by the witnesses, the three witnesses that you have called, that by clear and convincing evidence, Mr. Jack Finnegan has [been] shown to be a person who is substantially unable to manage his own financial resources or resist fraud or undue influence. We do not have direct evidence of undue influence or even fraud perpetrated by another entity on him. But what we do have is total inability, as was pointed out, to face reality, to accept that these individuals in these positions of authority are actually real and to accept that there is a finite end to arguing against the world.
“This is-I will note that the evidence is not proved solely by an isolated incident of negligence or improvidence. What we show is almost ten years' worth of Mr. Finnegan's refusal to conduct himself rationally when it comes to legal responsibilities and financial decisions. As has been noted by several of the witnesses, he continues to present a physical... demeanor that looks reasonably normal.
“He is completely verbal. It is not that he has lost language or linguistic skills, which some people as they age do lose. But in his case, he is very articulate. He just does not make any sense.
“He submits written materials, which is shown by the multiple... lawsuits that he loses in every instance. He writes things that make no sense. He is correct that he has done volumes of research, because that's how much effort would have been required just to accumulate all the lists of statutes that he cares to invoke. But that does not make him right.
“And moreover, the fact that he was given more and more opportunities to prevent the compound consequences of his bad decisions, and he refuses to see that they were bad decisions even when he has lost everything.
“I commend both the bankruptcy judge, as well as the trustee, to try and craft something to prevent making him a homeless person who will continue to fight against the world. As the probate investigator learned from [Finnegan's] adult son, he apparently has taken the death of his wife extremely hard. And from-apparently from that point on, he has conducted his actions with the public and with positions of authority with the idea that there is a war, and he is going to outlast them.
“That is not a realistic, rationalistic position to take. More importantly, it is not evidence of substantial ability to manage one's financial resources, and that's proven by the fact that everything has gotten lost.
“I do find specifically that the incidents, as discussed by the witnesses, are multiple, consistent, without end. Each time one proceeding ended with a final judgment after appeal was denied, he files something else. And it will not end.
“Therefore, the court does find, by clear and convincing evidence, that the conservatorship of the estate is necessary, and there is no least restrictive alternative, other than conservatorship of the... estate, for the finances of Mr. Jack Finnegan.”
The trial court found the proposed conservator, Peter Kote, suitable and qualified to serve as conservator of Finnegan's estate. The trial court added that “[a]ny sale of real property is subject to court confirmation for [the] sole purpose of informing/giving notice to the court should the bankruptcy court move to sell the property.”
The following month, the trial court issued a formal signed ruling setting forth the scope of the conservatorship, including the order that, absent a contrary written order, Finnegan “lacks the capacity to commence or continue any litigation, lawsuit, or other legal proceeding including, but not limited to, filing any pleading or notice of appeal in any federal or state court. Instead, any such pleadings, lawsuits, or appeals may only be filed by Conservator, PETER KOTE.”
APPEALABILITY
As noted ante, Finnegan initiated this appeal by filing a notice of appeal the morning of trial on December 5, 2019.
This court ordered a stay on the preparation of the appellate record and invited the parties to submit supplemental briefing addressing the court's concerns whether the appeal was taken from an appealable order: “Appellant's notice of appeal filed on December 5, 2019 in this conservatorship proceeding does not identify the date of the order or judgment from which he appeals. Appellant's civil case information statement states the appeal is from orders entered on June 5, 2019 and December 3, 2019. The June 5, 2019 order is an unsigned minute order denying appellant's request to dismiss the conservatorship petition. Appellant has not attached a copy of the December 3, 2019 order. The court is considering dismissing the appeal because the orders do not appear to be appealable orders listed in Probate Code sections 1301 and 1301.5. (Code Civ. Proc., § 904.1, subd. (a)(10); see Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235.)”
Following briefing, in a subsequent order dated June 29, 2020, this court stated: “After reviewing the documents filed here and judicially noticeable trial court documents, it appears appellant intended to appeal a December 5, 2019 order granting a probate conservatorship over his estate (and certain other orders leading up to that order). The trial court subsequently entered a formal order granting the probate conservatorship on January 15, 2020. It does not appear that letters of conservatorship have actually issued in this case. [¶] This appeal may proceed as one taken from the order granting of letters of conservatorship and the orders leading up to that appealable order. (Prob. Code, § 1301, subd. (a).)” (Italics added.)
DISCUSSION
I.
Probate Code Section 1801 and the Standard of Review
Probate Code section 1801, subdivision (b) provides in relevant part: “A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence.... Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.” Subdivision (e) of Probate Code section 1801 provides that the standard of proof for the appointment of a conservator under this section is “clear and convincing evidence.”
A trial court's decision to appoint a conservator is reviewed for substantial evidence. (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401.) “When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
II.
Finnegan Has Failed to Meet His Burden of Proving Error.
In his appellate briefs, Finnegan does not argue the trial court's decision to appoint a conservator over his estate is supported by insufficient evidence or that the trial court applied an incorrect legal standard in reaching its decision. The record shows more than substantial evidence supported the trial court's finding that clear and convincing evidence of Finnegan's conduct showed he was a person who is substantially unable to manage his own financial resources within the meaning of Probate Code section 1801, subdivision (b).
In his opening brief, Finnegan states “[t]here was no evidence submitted in the Official Record that the proposed conservatee was unable to provide properly for his personal needs, that the proposed conservatee was unable to substantially manage his own financial resources.” It is unclear what Finnegan means by the Official Record. To the extent Finnegan intended by his statement to mount a substantial evidence challenge to the order, we conclude Finnegan waived any such challenge because he failed to summarize material evidence admitted at trial, much less cite or analyze such evidence in his appellate briefs.
Substantial evidence showed Finnegan persistently refused to cooperate with the City of Dana Point in resolving the unpermitted construction on the Manzanita property starting in 2011. He was ultimately convicted of several criminal counts and placed on informal probation. Probation was revoked when he refused to comply with the trial court's order requiring him to remedy the problems on the property, which resulted in significant fines. His recalcitrance led to the costs related to the appointment of a receiver and the ultimate sale of the Manzanita property to pay a portion of his outstanding expenses. Undaunted, Finnegan filed meritless lawsuits against city officials and superior court judges and staff in connection with the Manzanita property dispute, further incurring needless expenses. After he filed for bankruptcy protection and Marshack was appointed trustee, Finnegan was uncooperative and unresponsive. He refused to appear for required meetings and examinations. He rejected Marshack's authority as trustee and the legitimacy of the bankruptcy judge's jurisdiction over him. By continuing to incur significant expenses and being unwilling to cooperate in resolving creditors' claims, Finnegan obstructed Marshack's efforts to help Finnegan continue to live in the San Clemente residence with sufficient resources for living expenses.
Instead of analyzing the state of the trial evidence or the applicable legal standard, Finnegan's opening brief consists of a long list of various legal principles and random quotations from a host of legal authorities; it is bereft of citations to the record or relevant legal analysis. To meet the burden of affirmatively demonstrating error, an appellant must raise issues for review and support each issue raised with argument, legal authority, and citations to the record. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; In re S.C. (2006) 138 Cal.App.4th 396, 406.) If an appellant fails to raise an issue, or fails to adequately support an issue raised, the appellate court may deem the issue forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.)
Any reference to a matter in the record must be supported by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) “When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made.” (In re S.C., supra, 138 Cal.App.4th at p. 406.) “If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) A self-represented litigant is held to the same rules as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Rule 8.204(a)(1)(B) of the California Rules of Court also requires that a brief “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” The “[f]ailure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.) Finnegan's briefs fail to contain the required headings stating contentions of error.
Given the state of his appellate briefs, we conclude Finnegan has failed to carry his burden of demonstrating error. Even were we to assume Finnegan has not forfeited his arguments on appeal, his briefs do not show that the order granting the petition was erroneous.
Notwithstanding this court's order dated June 29, 2020 regarding the scope of the instant appeal as taken from the order granting the petition, Finnegan's opening brief begins: “The nature of the action is to compel obedience to the private rights of the Appellant's Constitutional rights, and the voiding of all actions of the Superior Court that resulted from excess of jurisdiction and a reversal of the final decision filed on May 13, 2020. The final decision is unenforceable and void because it is violative of the explicit command of” the United States Constitution, the California Constitution, federal and California state law, and the California Rules of Court.
Finnegan does not cite to the clerk's transcript in his appellate briefs. Our review of the clerk's transcript shows a single entry of a document filed on May 13, 2020, issued by the court clerk, entitled “Notice to Filing Party, ” which states: “We are unable to process the attached papers for the reasons indicated below: Letters cannot be issued until Substitution of Attorney form (MC-050) is filed.” Even if this document constituted an appealable order, which on its face it clearly is not, it was filed well after the trial court granted the petition and Finnegan filed his notice of appeal. Finnegan does not again mention this document or provide any argument to support his purported contention of error on this point.
Finnegan asserts that the “Official Record” does not contain an express finding by the trial court that granting the petition for a conservatorship was “‘the least restrictive alternative needed for the protection of the conservatee.'” Finnegan's assertion is demonstrably false, as evidenced by the trial court's express statement making such a finding both on the record at the conclusion of trial on the petition and in the trial court's written order granting the petition.
In his opening brief, Finnegan implies that the filing of the petition constituted a violation of the automatic stay imposed upon Finnegan's initiation of the bankruptcy action. The record shows the bankruptcy court itself granted Marshack's request to file a conservatorship petition in the trial court.
Finnegan's contentions challenging the authority and actions of the bankruptcy court, including whether the bankruptcy judge in the bankruptcy action should have been disqualified and whether Marshack is the duly appointed trustee in the bankruptcy action, are not only irrelevant, but fall outside this court's jurisdiction, and for that matter, outside the jurisdiction of the trial court. Jurisdiction to hear appeals from final judgments, orders, or decrees in a bankruptcy case lies with the United States District Court, or, if the parties consent, with the bankruptcy appellate panel established by the judicial council of a circuit. (28 U.S.C. § 158(a)(1), (b)(1).)
Finnegan argues the order granting the petition is void because it was made by a temporary judge and the record does not contain the parties' stipulation for a temporary judge to preside at the trial. The trial judge in this case is a sitting judge of the Orange County Superior Court, not a temporary judge.
To the extent Finnegan argues he was unfairly denied a jury trial, there is no dispute he failed to post jury fees. Section 631, subdivision (f)(5) of the Code of Civil Procedure provides that a party waives trial by jury if that party fails to timely pay the $150 nonrefundable fee required to offset the costs to the state of providing juries in civil cases (id., § 631, subd. (b)). (See Templo v. State of California (2018) 24 Cal.App.5th 730, 733 [rejecting argument statute requiring civil litigants to pay nonrefundable fee in order to secure a jury trial is unconstitutional].) Finnegan therefore waived a jury trial in this case.
In addition, in his appellate briefs, Finnegan makes the following rather disembodied, stray references to various legal principles, constitutional provisions and statutes, none of which constitutes a supported contention of error, much less prejudicial error: (1) the petition was filed “with intrinsic and extrinsic fraud”; (2) “[t]he case should have been ruled a moot case or question which will not be considered by the court”; (3) “Marshack cannot prove concrete harm”; (4) there is no ripe controversy at issue; (5) the trial court lacked personal and subject matter jurisdiction; (6) “untruthful pleading or concealment of facts, a false issue is presented”; (7) the filing of the petition was baseless and intended to interfere with the bankruptcy action; (8) there is no judicial immunity; (9) “venue is lacking”; (10) mail fraud was conducted “throughout the designated period” because of a purported date discrepancy regarding Marshack's notice of designating the record on appeal; (11) Marshack was not a “party of interest”; (12) the petition lacked “adherence” to various unspecified statutory requirements; and (13) there was no initial case management conference within 180 days, meet and confer efforts, or a case management statement.
As Finnegan has failed to develop intelligible argument regarding these references, we do not consider them further. (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1161; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority”].) To the extent Finnegan intended to assert additional arguments in his opening brief other than those addressed in this opinion, they are forfeited because they are unsupported by relevant legal citations or analysis.
DISPOSITION
The order granting the petition to appoint a conservator of the estate of appellant is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., THOMPSON, J.