Opinion
A130423
01-12-2012
Estate of CHARLES RAY SURVINE, SR., Deceased. CHARLES ZAR SURVINE, JR., Petitioner and Respondent, v. CHARLES LEE SURVINE, JR., I, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RP10534297)
Charles Lee Survine, Jr., I, in propria persona, appeals from an order appointing respondent Charles Zar Survine, Jr. administrator of the estate of Charles Ray Survine, Sr. He raises numerous issues concerning respondent's appointment including that he received inadequate notice of the petition for letters of administration, that the court failed to consider appellant's objections to respondent's appointment, and that the court erred in not admitting the decedent's will into probate. We affirm.
I. FACTUAL BACKGROUND
The decedent died intestate on July 21, 2009. On September 1, 2010, respondent filed a petition to be appointed administrator of decedent's estate. The petition indicated that the estate was valued at $125,000, and that the decedent was survived by the parties, his sons, and his other son, Lawrence Trent Survine, and Lawrence's spouse, Augustine Crawford Survine.
Appellant objected to the appointment and filed a document contesting the appointment alleging that respondent was incapable of administrating the estate due to senility, drug addiction, and criminal misconduct. He also filed decedent's purported will.
Respondent filed proof of publication of the Notice of Petition to Administer decedent's estate on October 4, 2010. The notice was published on September 7, 8, and 14, in the Inter-City Express, a newspaper of general circulation, in Oakland.
On October 5, 2010, the court called the matter for a hearing on the petition for letters of administration. Both appellant and respondent were present. The court continued the matter to November 3, 2010, and noted that a bond would be required to be posted.
On November 3, 2010, the court appointed respondent administrator of decedent's estate and entered an order for probate of the estate. Respondent filed a qualifying bond in the amount of $20,000 on the same day. Appellant filed a timely notice of appeal.
II. DISCUSSION
Appellant contends that respondent provided inadequate notice of the petition to administer decedent's estate and that he was not provided an opportunity to contest the petition. He also argues that the court erred in not considering his objections to respondent's appointment and in not admitting decedent's will into probate.
There was no error in respondent's publication of the notice of the petition to administer decedent's estate. The publication was made in accordance with Probate Code section 8121, and included three publications on September 7, 8, and 14, the last date being at least 15 days prior to the initial hearing date of October 5, 2010, and with at least five days intervening between the first date of September 7 and last publication date of September 14. No error appears.
Probate Code section 8121 requires that "[t]he first publication date of the notice [of hearing of a petition for administration of a decedent's estate] shall be at least 15 days before the hearing. Three publications in a newspaper published once a week or more often, with at least five days intervening between the first and last publication dates, not counting the publication dates, are sufficient."
Appellant's additional arguments concerning the lack of an opportunity to contest the petition, and alleged error in the court's consideration of his objections to respondent's appointment and in not admitting decedent's will into probate are waived. Appellant has not provided this court with an adequate record to review his arguments. It is well settled that an appellant must affirmatively show error by an adequate record. (Erikson v. Sullivan (1947) 81 Cal.App.2d 790, 791; (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, pp. 704-706.) Appellant elected not to provide us with a reporter's transcript and proceeded solely on a clerk's transcript.
An appellant intending "to raise any issue that requires consideration of the oral proceedings in the superior court" must include a reporter's transcript of the proceedings or an agreed or settled statement in the record on appeal. (Cal. Rules of Court, rule 8.120(b).) " 'It is elementary and fundamental that on a clerk's transcript appeal, the appellate court must conclusively presume that the evidence is ample to sustain the findings, and that the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment.' [Citations.]" (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154, see also, Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if record is inadequate for meaningful review, the appellant defaults and the trial court's decision should be affirmed].)
Here, we have no record of the dispositive hearing. Hence, we must presume that the court's judgment is correct. On the limited record before us, no error appears.
Appellant's status as a pro. per. litigant does not excuse him from the duty to comply with the rules. An appellant in propria persona is held to the same standard of conduct as that of an attorney on appeal. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
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III. DISPOSITION
The order is affirmed.
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RIVERA, J.
We concur:
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RUVOLO, P. J.
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REARDON, J.