Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, .No. 37-2007-00100733 PR-CP-CTL, Gerald Jessop, Judge.
BENKE, Acting P. J.
Erika Stow and Sergio Robles, co-conservators of the Conservatorship of the Person of Marco Arturo Robles Alcaraz, Conservatee, challenge in propria persona the amount of attorney fees and costs awarded them by the probate court. Pursuant to a settlement reached on the eve of trial, Stow and Robles were appointed limited conservators of Alcaraz, a developmentally disabled relative who at the time of trial was about 48 years old and who up to then had lived without a conservatorship. As part of the settlement, Alcaraz's cousin Kazan Johnson agreed to drop her competing conservatorship petition.
Stow and Robles and Johnson each subsequently filed petitions in the probate court for attorney fees and costs after their protracted legal battle over their competing appointments to serve as Alcaraz's conservator. Stow's and Robles's petition sought over $83,000 in attorney fees and costs, and Johnson separately requested in her petition about $43,000 in fees and costs. All payments for such fees and costs would come from a special needs trust established for Alcaraz, which trust was funded by two settlements and administered by a neutral, professional fiduciary, Gail Greer, trustee of Alcaraz's special needs trust.
Although Stow and Robles dispute the amount of money in the special needs trust at the time they made their fee request, the evidence before the probate court at the time it considered both petitions showed that trust was worth about $180,000. Based on that information, the probate court found that if it granted in full the petitions of Stow and Robles and Johnson, about 70 percent of the funds then available in Alcaraz's special needs trust would be consumed.
As we discuss, on this limited record we conclude the probate court properly exercised its discretion when it awarded Stow and Robles 25 percent of their requested fees and costs, or a little less than $21,000.
The probate court also awarded Johnson about $8,000, but that award is not the subject of this appeal.
DISCUSSION
A. Court Order Awarding Attorney Fees and Costs
In late January 2010, the probate court issued the following order on the two petitions for an award of attorney fees and costs:
"On December 17, 2009, the two petitions, one by co-conservators [Stow] and [Robles], and the other by attorney Lori Bolander-Cook [on behalf of Johnson] came on regularly for hearing. Petitioners [Stow] and [Robles] appeared personally and by and through their attorney.... Attorney and Petitioner Lori Bolander-Cook appeared personally along with her client, [Johnson]. Limited Conservatee [Alcaraz] appeared by and through his court[-]appointed attorney, Flora Calem. Special Needs Trust Trustee Gail Greer appeared personally and by and through her attorney, Carol Battaglia. The parties submitted on the pleadings and the court took the matter under submission. [Citation.]
"[Alcaraz] is a 47 year old client of the San Diego Regional Center. He lives primarily with his grandmother, Julia Moreno. On October 19, 2007 [Alcaraz's] cousin, [Johnson], filed a Petition for Limited Conservatorship based upon the allegation that Ms. Moreno was elderly and could no longer care for [Alcaraz]. Shortly thereafter on November 17, 2007 [Alcaraz's] half-sister, [Stow, ] filed a general Petition for Conservatorship of [Alcaraz's] Person and Estate. [Stow's] petition did not refer to the fact that [Alcaraz] resided with his grandmother, but appears to focus on the fact that [Alcaraz] would be soon receiving funds from two lawsuits. The Court notes that [Alcaraz] was a client of the San Diego Regional Center Services and had received informal assistance from [Johnson] and Community Options. During his previous 47 years, he had neither required nor been subject to a Limited Conservatorship.
"[Alcaraz] subsequently received the settlement from the two lawsuits in the amount of approximately $180,000. On February 25, 2008, the Court established a Special Needs Trust to manage these funds for [Alcaraz]. [Stow] and [Robles] received Letters of Limited Conservatorship on April 30, 2008. However, since the initiation of these proceedings, the competing petitioners amassed, and now request this court reimburse them for, attorney's fees and costs in the amount of $126,228.08; $76,183.00 in attorney fees and $6,830.58 in costs to [Stow] and $43,214.5[0] to [Johnson] to be divided $36,000.50 to her former attorneys, the Kirby & McGuinn law firm and $7,214.00 to her present counsel, the Cook & Associates law firm. If granted, these petitioning parties would consume approximately 70% of the funds currently held in [Alcaraz's] Special Needs Trust.
"Both Petitioners justify their requests as being 'just and reasonable' under the circumstances. However, the fact remains, that [Alcaraz] did not have a Limited Conservatorship for the previous 28 years of his adult life! Further, [Alcaraz's] Special Needs Trustee, Gail Greer, argues that an excessive award of fees, if not for the benefit of [Alcaraz], might disqualify the trust from the 'safe harbor' provisions of federal law. Attorney Flora Calem, [Alcaraz's] attorney, has argued that many of the fees incurred were not for her client's benefit. Indeed, it is apparent that most of these fees were more the result of [an] intra-family squabble [than] a heart-felt desire to assist [Alcaraz].
"Probate Code § 2640(c)(2) provides for the award of 'reasonable' attorneys fees to an attorney for a Conservator. Probate Code §2640.1 provides for an award of 'just and reasonable' attorneys fees to an unsuccessful petitioner provided that the petition was 'filed in the best interests of the Conservatee.' In presenting their requests for fees, both [Stow], as the successful petitioner, and [Johnson], as an unsuccessful petitioner, must provide the Court with a Declaration which complies with California Rule[s] of Court §7.702.... A review of these petitions reveals that the compensation prayed for exceeds what this Court deems either just or reasonable under the circumstances. Further, the Court is concerned regarding the substance of a Court Investigator Report filed November 4, 2009. The Court Investigator reports that [Stow] had very little contact with [Alcaraz]. Also, the envelope addressed to her co-conservator, [Robles], was returned to the Court by the U.S. Postal [S]ervice. The Conservators need to be involved and have contact with both the Conservatee and the court in order to properly perform their fiduciary responsibilities. Regardless of this concern, [Alcaraz] did derive some benefit from the attorney's fees and costs incurred by these petitioners.
"[Alcaraz's] elderly grandmother is becoming less able to care for [Alcaraz]. The litigation helped bring into focus [Alcaraz's] needs and the authority required to meet those needs. [Stow] also deserves credit for pursuing the monetary awards for which [Alcaraz] now enjoys a higher standard of living. There was clearly some value in the attorney's fees [Stow] incurred. Fees limited to those services are reasonable. Both Attorney Calem and Attorney Bolander-Cook suggest that this court award not more than 25% of [Stow's] attorney's fees and costs. This formula appears appropriate under the circumstances.
Stow filed and pursued on her behalf and on behalf of Alcaraz a wrongful death lawsuit involving their father Arturo Moreno. However, the record shows the second lawsuit was actually filed by Johnson on behalf of Alcaraz for injuries Alcaraz sustained after being struck by an automobile.
"[Johnson] also requests that [Alcaraz's] Special Needs Trust reimburse her for her attorney's fees and costs. [Johnson's] fee and cost request falls into five categories. Of these five categories, it appears that [Alcaraz] benefited from two of those categories: $5,322.00 for the creation of the Special Needs Trust and $2,715 for fees incurred to [e]nsure contact with the Regional Center and doctor visits. Those two categories of fees were of benefit to [Alcaraz]. It was critical that [Alcaraz] maintain contact with the San Diego Regional Center. He clearly has a higher standard of living due to the creation of the Special Needs Trust. These fees are reasonable and were incurred in [Alcaraz's] best interest. The court denies the balance of the fee and cost request.
"Based upon the foregoing, the Court awards [Stow's] attorney's fees and costs in the amount of $20,753 and [Johnson's] attorney's fees and costs in the amount of $8,037."
B. Governing Law
Probate Code section 2640, subdivision (c) provides in part: "[T]he court shall make an order allowing... (2) any compensation requested in the petition the court determines is reasonable to the attorney for services rendered to the guardian or conservator of the person or estate or both. The compensation allowed to the guardian or conservator of the person, the guardian or conservator of the estate, and to the attorney may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator. The compensation allowed shall thereupon be charged to the estate. Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney. The petition or application for compensation shall set forth the hours spent and services performed by the paralegal."
The allowance of attorney fees rests largely in the discretion of the trial court and will not be disturbed unless an abuse of discretion is plainly involved. (Guardianship of Jacobson (1947) 30 Cal.2d 312, 325.) As our high court explained, " 'The "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong" '—meaning that it abused its discretion." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.) "Whether the claim on appeal is that the allowances for [services] was too high or too low, the appellate courts are most reluctant to disturb the determination of the probate court, for the reason that the amount of such allowances rests peculiarly in the discretion of the trial court. Such discretion will be interfered with only when the amount of allowance is so far out of line as to constitute a clear and manifest abuse of judicial discretion. [Citations.] It is primarily for the probate court to determine the necessity for and to value the services of the execut[or] and [his or] her attorney." (Estate of Merritt (1950) 98 Cal.App.2d 70, 76.)
C. Record on Appeal
Appellants have the burden of providing an adequate record and showing prejudicial error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Absent an adequate record to demonstrate error, a reviewing court presumes the judgment or order is supported by the evidence. (See In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.)
Moreover, it is appellants' duty to support arguments in their briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Such arguments are restricted to evidence in the record, and we generally will not consider references to matters outside the record. (Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant's opening brief must provide a summary of significant facts limited to matters in the record on appeal]; see also Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.)
Preliminarily, we note that Stow and Robles have neither provided a properly supported statement of facts in their opening brief nor have they designated an adequate record. The California Rules of Court require that litigants provide a summary of the significant facts supported by references to the appellate record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) & (a)(2)(C); see also Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with the California Rules of Court requiring summary of material facts supported by appropriate reference to the record may constitute waiver of error].)
It is well established that "[i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985 [an in propria persona appellant is held to the same standard of conduct as an attorney on appeal].) For any appellant, "[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.]' [Citations.]" (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [factual arguments without citations to the record are disregarded by a reviewing court].) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
Here, there is no reporter's transcript in the record, despite the fact the Stow and Robles claim the probate court abused its discretion (among many other complaints and contentions) when it awarded them attorney fees and costs substantially less than those requested. (See In re Jacobson's Guardianship, supra, 30 Cal.3d at p. 325.) Unless the absence of a reporter's transcript is not the fault of the party seeking review, "the absence of a transcript precludes a determination that the trial court abused its discretion. [Citations.]" (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 690, fn. 5.)
With respect to Stow and Robles's appendix, Greer argues in her brief that from page 59 forward Stow and Robles included documents that were not before the trial court when it ruled on their attorney fees and cost petition, and thus such documents should not be considered by this court. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [on appeal, review is generally limited to the record which was before the trial court].)
We also independently note there are myriad instances in the appendix where Stow and Robles have lodged only a page or two of a multi-page document. (See e.g., Stow and Robles Appendix (AA) 1-2 [pages 1 and 5, but not pages 2, 3 and 4, of report of court-appointed attorney]; AA 5-6 [pages 1 and 5 of supplemental report of court-appointed attorney]; AA 7-10 [pages 1, 37, 38 and 41 of joint trial statement]; AA 14A-14B [pages 1 and 12 only of second supplemental report of court-appointed attorney]; and AA 86 [page 4 of objection by Johnson to appointment of Stow as conservator].)
Similarly, there are several documents included in the appendix that clearly are not original copies but were instead ostensibly generated and created by Stow and Robles specifically for use in this appeal. (See e.g., AA 60 [reprinted testimony of Johnson from her deposition, found at page 41]; AA 61 [same, from page 63]; AA 64 [reprinted "cut and pasted" e-mail ostensibly from Flora Calem to Stow's and Robles's attorney dated September 22, 2008]; and AA 66 [a picture of Alcaraz and Stow from some unknown date in a document entitled "The absence of a bond between Stow and [Alcaraz]"].)
This is just a few of the many examples of documents included by Stow and Robles in their appendix that do not appear to be original, properly authenticated, copies.
In addition, we note Stow and Robles filed a "reply appendix" after Alcaraz and Greer each filed a respondent's brief. There is no provision in the rules for an "appendix" to a reply brief. The reply appendix also is riddled with the same rule violations as the Stow and Robles appendix (e.g., incomplete documents, unauthenticated documents and/or documents ostensibly not before the trial court when it ruled on Stow and Robles's petition for attorney fees and costs).
Stow and Robles also moved to augment the record to include a document generated by the San Diego Regional Center entitled "Person/Family Centered Planning Individual Program Plan" dated June 30, 2010. Greer objected, noting the San Diego Regional Center document was dated after Stow's and Robles's March 25, 2010 notice of appeal. This court on October 26, 2010, denied their motion to augment.
It also appears that many of the arguments Stow and Robles make on appeal were not raised in the trial court, and thus are now barred. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 ["It must appear from the record that the issue argued on appeal was raised in the trial court, " otherwise the issue is "waived"]; see also City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 [contentions or theories raised for the first time on appeal are generally not entitled to consideration].)
Despite the state of the record on appeal, we now move to discuss the merits of Stow's and Robles's claims, subject to the proper rules applicable to a court of review.
D. Analysis
1. Settlement Agreement
In ruling on their petition for fees and costs pursuant to Probate Code section 2640, subdivision (c), Stow and Robles argue the probate court erred when it considered the objections lodged by Alcaraz and Johnson to their attorney fees petition. Specifically, Stow and Robles argue that pursuant to a settlement agreement executed by them, Johnson and Alcaraz, the objections by Alcaraz and Johnson to their petition for fees and costs were "withdraw[n]." As such, according to Stow and Robles the objections should have been "removed" (perhaps from the court file) "per the signed agreement between all parties submitted to the court on [December 17, 2009]." We conclude this argument is unavailing for a host of reasons.
First, we note Greer was not a party to that agreement. Thus, contrary to Stow's and Robles's argument, not "all parties" signed the agreement. Second, the agreement itself is conditioned on court approval. Recital "G" of that agreement provides in relevant part: "In light of the objections [to the petitions for attorney fees] filed by [Greer] and her unwillingness to negotiate in these settlement discussions, this settlement agreement is made contingent on the Court's acceptance of this settlement agreement."
Section 4 of the agreement likewise provides: "Any and all attorney fees and costs arising out of the contested conservatorship proceeding must be approved by the Probate Court before payable from [Alcaraz's] Special Needs Trust."
Clearly, the court did not approve the agreement when it found Stow and Robles were entitled to about $21,000 in attorney fees and costs, rather than the $43,091.01 sum specified in the agreement.
Third, Stow and Robles cite no authority stating that an agreement of (some) of the parties binds a trial court in determining the reasonableness of an award of attorney fees and costs, nor are we willing to adopt such a rule.
We also reject Stow's and Robles's alternative argument that the probate court erred in not providing them an evidentiary hearing on their petition for attorney fees. We note there is no evidence in the record Stow and Robles ever asked for such a hearing. In addition, the limited record shows the settlement agreement was entered into after Stow and Robles filed their petition for attorney fees and costs. If, as Stow and Robles believed, the probate court should have accepted that settlement, as they now argue on appeal, there clearly would have been no reason to seek such a hearing.
In addition, Stow and Robles do not state what evidence they would have introduced in such a hearing, or why that evidence was not included in their petition for attorney fees and costs. Stow and Robles also do not explain why they did not ask the probate court for such a hearing, even after it ruled on their petition, and instead waited until this appeal to raise that issue. (See Estate of Westerman (1968) 68 Cal.2d 267, 279 [issues not raised in the trial court may not be raised for the first time on appeal].)
2. Objections by Trustee
Stow and Robles next argue the trial court erred when it considered Greer's objection to their petition for attorney fees and costs because Greer, as trustee of Alcaraz's special needs trust, had a conflict of interest in opposing their petition and because Greer, in any event, had little or no firsthand knowledge of the facts of this case, including whether the protracted litigation involving the competing conservatorship petitions was a "power struggle" over Alcaraz. Stow and Robles further allege that Greer and Alcaraz's court-appointed attorney, Calem, worked in "unison" to ensure Greer would be appointed trustee of Alcaraz's special needs trust and that Greer, in return, would oppose Stow's and Robles's attorney fees petition; that since the trust's creation, it has paid Greer and her attorney over $13,000 in compensation; and that because it is in Greer's (as opposed to Alcaraz's) best interest to retain as much of the trust proceeds she is managing as possible, as trustee she was in a true conflict situation when she opposed the petition for fees and costs.
First, not surprisingly we note Stow and Robles have cited no authority for the proposition Greer had a conflict of interest when in her capacity as trustee she challenged the amount of fees and costs Stow and Robles sought to recover from the corpus of the trust she is legally obligated to manage for the benefit of Alcaraz. In any event, such a rule would make no sense, inasmuch as a trustee has a fiduciary obligation to manage the corpus of a trust for the benefit of the trust beneficiaries. (See Askew v. Resource Funding, Ltd. (1979) 94 Cal.App.3d 402, 407 ["A trust contemplates a fiduciary relationship with respect to property, wherein the person holding title is held to an equitable obligation to deal with or use the property for the benefit of another."].)
Second, we note there is absolutely no evidence in the record to support any of Stow's and Robles's allegations regarding any wrongdoing by Greer and/or by Greer and Alcaraz's court-appointed attorney, Calem, including any evidence of any alleged conspiracy between them to prevent Stow and Robles from receiving all of the attorney fees and costs they sought in their petition (or the reduced sums of such fees and costs they sought in settlement). (See Fink v. Shmetov (2010) 180 Cal.App.4th 1160, 1174 [matters outside the record on appeal constitutes new evidence not considered by the trial court, and is thus not considered by the reviewing court].)
Indeed, although Stow and Robles claim they had Alcaraz's best interests at heart and Greer, Calem and Johnson, among others, did not, these unsupported allegations of wrongdoing made by Stow and Robles in this appeal about Greer, her attorney and Alcaraz's attorney, all of whom are operating under court supervision, suggests otherwise.
Stow and Robles also attack statements in Greer's declaration made in support of the trustee's objection to their petition for attorney fees and costs that the payment of fees to them would violate the "sole benefit rule" for a first party special needs trust. Specifically, in that declaration Greer stated:
"I am concerned that payment of such fees is in violation of the sole benefit rule for first party special needs trusts. A first party special needs trust must be 'for the benefit' of the individual to be considered a qualifying or safe harbor trust.... [¶] [] In the event that the Social Security Administration conducts an audit of this special needs trust, the Trustee would not be able to show that the attorney fees requested by [Stow and Robles] or [Johnson] were for the sole benefit of [Alcaraz]. [Alcaraz's] court appointed attorney, [Calem], who has personal knowledge of the facts regarding these attorney fee petitions and she states in her pleadings that the services were not all for [Alcaraz's] benefit. It would be difficult, if not impossible, for me to prove to the Social Security Administration that the payment of over two-thirds of the trust funds for attorney's fees in petitioning the Court to appoint a limited conservator was for [Alcaraz's] sole benefit. It would be obvious to anyone who reviews the records that these attorney's fees were incurred because of a power struggle between members of [Alcaraz's] family and [Alcaraz's] special needs trust should not be required to pay those fees.
"[] If the Social Security Administration viewed these expenditures as improper, then the entire trust would be considered available to [Alcaraz] and... he would no longer be eligible for Supplemental Security Income ('SSI') and Medi-Cal. The special needs trust would need to be spent in its entirety before [Alcaraz] could requalify. This would leave nothing for [Alcaraz's] special needs."
Stow and Robles argue Greer's reliance on the "sole benefit rule" is speculative and also argue there is no evidence to support her assertion that "none of the litigation benefited the conservatee [Alcaraz]."
First, as noted ante this is only one of several justifications given by the trial court when it reduced the award of attorney fees and costs sought by Stow and Robles. Even if we disregarded it, as discussed post there is still substantial evidence in this record to support the probate court's determination regarding the reasonableness, or lack thereof, of the fees and costs sought by Stow and Robles in their petition.
Second, it does not appear from this limited recordStow and Robles ever challenged Greer's reliance on the sole benefit rule in the probate court, and thus they are precluded from doing so in this appeal. (See Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1794; see also City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 685.)
To the extent Stow and Robles argue they had agreed in their "settlement" not to respond to the objections, we note that agreement only covered the objections by Johnson and Alcaraz's court-appointed attorney, Calem, but not Greer's, as Greer was never a party to that agreement. In any event, the agreement was conditioned on the approval of the probate court, which obviously rejected it. Moreover, even after the probate court made its ruling regarding the reasonableness (or lack thereof) of Stow's and Robles's petition for fees and costs, they did not seek a reconsideration of that ruling.
Third, given that it is a disputed factual issue whether the payment of attorney fees and costs sought by Stow and Robles in their petition was for Alcaraz's "sole benefit, " as a court of review we are unable to weigh or reweigh the "evidence" pertinent to that issue, particularly in light of the myriad deficiencies in Stow's and Robles's record on appeal. "The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness's testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment." (In re Daniel G. (2004) 120 Cal.App.4th 824, 830; see also In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931 [on appeal, we view the entire record in the light most favorable to the prevailing party to determine whether there is substantial evidence to support the trial court's findings, and resolve all conflicts in such evidence and draw all reasonable inferences in favor of the findings].)
Here, the probate court found that many of the fees sought by Stow and Robles in their petition "were more the result of [an] intra-family squabble...." Thus, it is clear from the finding of the probate court that many of the fees and costs sought by Stow and Robles were not for Alcaraz's benefit, much less his sole benefit, which finding we conclude is amply supported by the evidence in the record (as discussed post). For this separate reason, we reject Stow's and Robles's argument that all attorney fees and costs they sought in their petition were for Alcaraz's sole benefit.
3. Benefit to Alcaraz
Stow's and Robles's primary argument in this appeal is that the probate court erred when it found many of the attorney fees and costs in their petition were the result of a "family squabble" over Alcaraz rather than a "heart-felt desire to assist [Alcaraz]." Stow and Robles aggressively argued to the trial court and again in this court that "[e]very penny" of attorney fees and costs in their petition "absolutely benefited [Alcaraz] and the quality of life he enjoys today."
The probate court, as the trier of fact and the decision maker on the reasonableness (or lack thereof) of fees and costs sought by Stow and Robles, was free to accept that argument and award them "every penny" they sought in their petition. The probate court, however, was also free to reject that argument, and make a different determination on the value of those fees as it pertained to Alcaraz. Whether this court agrees with that determination or would have awarded Stow and Robles a different amount (including less fees and costs) is completely irrelevant.
When an appellant contends the evidence is insufficient to support a judgment, order, or factual finding, we apply the substantial evidence standard of review. "Where findings of fact are challenged on a civil appeal, we are bound by the 'elementary, but often overlooked principle of law, that... the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) "Substantial evidence" means the evidence must be of ponderable legal significance, reasonable, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) An appellate court presumes in favor of the judgment or order all reasonable inferences. (Id. at pp. 1632-1633.) If there is substantial evidence to support a finding, an appellate court must uphold that finding even if it would have made a different finding had it presided over the trial. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429-430 & fn. 5, italics added; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)
As we noted ante, a court of review cannot reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact. (In re Daniel G., supra, 120 Cal.App.4th at p. 830; Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) "The substantial evidence [standard of review] applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial." (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.)
The limited record on appeal supports the finding of the trial court that not "every penny" of the fees and costs sought by Stow and Robles in their petition benefitted Alcaraz and were thus reasonable. For one thing, there is substantial evidence in the record to support the finding that Alcaraz did not really need a limited conservatorship in the first place, inasmuch as Alcaraz received substantial assistance from Johnson, the San Diego Regional Center, Community Options (Alcaraz's day and job program) and his grandmother, and "[d]uring his previous 47 years, he had neither required nor been subject to a Limited Conservatorship."
In addition, the evidence in the record supports the finding that Alcaraz's "need" for a conservatorship arose only after it appeared he would be receiving about $180,000 in settlement from two lawsuits, one filed on his behalf by Johnson and the other by Stow.
Although Stow and Robles continue to disagree strongly with the views espoused by Alcaraz's court-appointed attorney, Johnson, Greer and others regarding Stow's motives to be appointed Alcaraz's conservator, the fact remains there is evidence in the record supporting the finding of the trial court that the contested conservatorship of Alcaraz was a personal battle between family members for control over him in light of the fact he would be receiving about $180,000 in settlement from the two lawsuits.
There also is evidence in the record showing that Stow's vision for Alcaraz was not shared by the others who also were concerned for his well-being. While Stow and Robles steadfastly believe their view was in Alcaraz's best interest, clearly others disagreed. This evidence thus supports the finding of the probate court that a not insubstantial portion of the attorney fees and costs incurred by Stow and Robles were based on a disagreement among "family" and "friends" over Alcaraz and what was best for him.
On this limited record, we therefore conclude substantial evidence supports the finding of the probate court that a portion of the fees and costs sought by Stow and Robles in their petition were incurred as a result of an "intra-family squabble" that had limited or no value for Alcaraz. We further conclude the probate court properly exercised its discretion when it capped Stow's and Robles's fees and costs to 25 percent of the amounts sought in their petition. (See § 2640, subd. (c) (2); see also Estate of Merritt, supra, 98 Cal.App.2d at p. 76 ["It is primarily for the probate court to determine the necessity for and to value the services of the execut[or] and [his or] her attorney."].)
E. Request for Sanctions
Greer argues that Stow's and Robles's appeal is frivolous and asks this court to award respondents sanctions in an amount equal to the fees they incurred in this appeal that will be paid from Alcaraz's special needs trust. Code of Civil Procedure section 907 provides for sanctions against an appealing party when it appears "that the appeal was frivolous or taken solely for delay." An appeal may be frivolous if, objectively speaking, "any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Conversely, an appeal is not frivolous if a reasonable attorney would think the issues are arguable. (See id. at p. 651.) In no cases except the clearest should an appeal be deemed frivolous. (Ibid.) An appeal simply without merit is not by definition frivolous. (Ibid)
Here, we decline to find that Stow's and Robles's appeal was "totally and completely without merit." (See In re Marriage of Flaherty, supra, 31 Cal.3d at p. 651 [sanctions should be "used most sparingly to deter only the most egregious conduct"].) However, this issue is by no means "clear-cut." We therefore encourage Stow and Robles to carefully consider whether any additional legal proceedings in connection with this matter are necessary and in Alcaraz's best interest, in light of the fact any fees and costs incurred by respondents in connection with those proceedings will likely be paid from Alcaraz's special needs trust.
DISPOSITION
The probate court's order awarding Stow's and Robles's attorney fees and costs is affirmed. Greer and Alcaraz to recover their costs of appeal.
WE CONCUR: McDONALD, J., O'ROURKE, J.