Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Ct. No. 1167640, Denise deBellefeuille, Judge.
Christopher A. Zajic, in pro. per., for Appellant.
Monty H. Amyx for Respondent.
PERREN, J.
A former trustee appeals an order of the probate court rejecting his trust accounting and finding he breached his fiduciary duty. He asserts the court erred in denying his request to be represented in the trust proceedings by his wife, permitting the successor trustee to testify, and ordering him to return $300,000 he withdrew from the trust. We affirm.
Facts and Procedural History
Appellant Christopher A. Zajic was the attorney for Della Belkowski. At her request, he drafted the Della Belkowski 1994 Revocable Trust (Trust). Upon her death in 1999, he became successor trustee.
In June 2005, Jeremy Murray and Marc Murray, the beneficiaries of the Trust, filed a petition for an accounting and a request that Zajic be removed as trustee. In August 2005, the parties executed a stipulation in which Zajic agreed to resign as trustee and to prepare a final accounting. On January 17, 2006, the court issued an order removing Zajic as trustee and appointing Kim Sutherland as successor trustee.
Zajic filed a second amended accounting and report of trustee. He also filed a motion to exclude expert witness testimony on the ground that plaintiffs failed to file an expert witness designation. Sutherland filed objections to the accounting. She did not respond to the motion.
Prior to the hearing on the petition, Zajic requested that the court permit him to be represented by his wife and law partner, Helen Zajic. The court denied the request finding that there was a conflict in that his wife may have benefitted from wrongdoing committed by Zajic during the course of Trust administration.
At the hearing, Sutherland was called to testify. Zajic objected to the testimony on the ground that she was testifying as an expert witness. The court overruled the objection and she was permitted to testify. Sutherland's testimony consisted of a recapitulation of transactions involving the Trust during Zajic's tenure as trustee. Her testimony was based on documents obtained from Washington Mutual Bank and the Trust's property manager. Her testimony substantially contradicted the accounting Zajic had prepared.
After hearing, the court issued an amended order and judgment finding that the objections to the accounting were meritorious and that it should not be approved. The court found that Zajic breached his fiduciary duty and violated the Trust in numerous respects during his tenure as trustee. Zajic was ordered to return $300,000 to the Trust with interest from the date of judgment to the date of payment.
Zajic filed a timely appeal.
Discussion
The Trial Court Did Not Abuse Its Discretion in Refusing Appellant's Request to be Represented by His Wife
Zajic asserts the trial court erred in denying his request to be represented by his wife and law partner. We review the court's decision to disqualify counsel for abuse of discretion. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819.)
A trial court has inherent and statutory discretion to control the proceedings to ensure the efficient administration of justice. (Code Civ. Proc., § 128; People v. Gonzalez (2006) 38 Cal.4th 932, 951.) This discretion includes the power to intervene on its own initiative to inquire into any appearance of impropriety, control the proceedings to remedy the defect, and disqualify an attorney if that appears necessary. (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 261, fn. 4; Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 901, fn. 4.)
The trial court did not err in refusing Zajic's request that his wife represent him in the proceedings. Substantial evidence supports the conclusion that, as a partner and principal in Zajic's law firm, she had a pecuniary interest in the proceedings. Zajic's argument that he could and would have waived any conflict did not require the trial court to permit Mrs. Zajic to represent her husband. An attorney is prohibited from representing a client when the attorney and client have a personal, financial, or professional relationship. (See, e.g., Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1723-1724 [attorney disqualification required under professional standards governing avoidance of conflicts of interest]; Rules Prof. Conduct, rule 3-310(B)(1) [attorney may not represent client where attorney has financial interest in outcome of litigation].)
The Trial Court Did Not Err in Permitting the Successor Trustee to Testify
Zajic contends the court erred in permitting Sutherland to testify because she was testifying as an expert and he received no opposition to his motion in limine to exclude expert testimony.
Sutherland's testimony was derived from financial documents relating to the income and expenses of the Trust. She was not giving an expert opinion. Moreover, Zajic's brief is devoid of any authority or argument supporting his contention. "'"[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.]" [Citation.]'" (People v. Hovarter (2008) 44 Cal.4th 983, 1029.) We thus reject the contention without further discussion.
The Probate Court Did Not Abuse its Discretion in Ordering Zajic to Reimburse the Trust in the Amount of $300,000
Zajic asserts the court erred in entering judgment against him in the amount of $300,000. He argues that the amount ordered to be returned is excessive because the total value of the estate exclusive of the residence was approximately $137,000 and the residence was given to the beneficiaries. The record is to the contrary and discloses a deplorable course of conduct resulting in the pillaging of the account.
The trial court's order contains a detailed enumeration of Zajic's numerous breaches of fiduciary duty. He failed to (1) segregate and keep the Trust's assets separate from his own, (2) make tax and insurance payments on the residence, (3) make timely mortgage payments on the residence resulting in five foreclosure actions against the property and $13,000 in foreclosure fees, (4) rent the residence for an unreasonable amount of time following the testator's death, (5) deposit all rent payments into the Trust, and (6) keep proper books and records during the entire time he was trustee.
The court found the accounting filed by Zajic was misleading and unreliable. The accounting shows payments to the Trust that were incorrect, missing or were never deposited into the Trust. The disbursements contained in the accounting also were incomplete and misleading. None of the payments listed as attorney fees were made as indicated. Bank records showed that Zajic wrote dozens of checks to himself, his law firm and his wife for legal services in an amount exceeding $145,000 which are not identified in the accounting. In addition, the uncontroverted evidence established that Zajic made 270 cash and ATM withdrawals from the Trust in a sum exceeding $150,436; wrote checks against the trust account when there were insufficient funds to cover the checks, resulting in bank fees of $1,017; and borrowed $25,113 from a third party, repaying that amount and interest with Trust assets.
The record contains substantial evidence supporting the judgment and it is therefore affirmed. Respondent shall recover costs.
We concur: GILBERT, P.J., COFFEE, J.