Farmers
>New World Life
Ins. v. Beebe

 

 

 

 

 

 

 

Filed 7/3/13 
Farmers New
World Life
Ins. v. Beebe CA5

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH
APPELLATE DISTRICT

 

 

 
>

FARMERS NEW WORLD LIFE INSURANCE COMPANY,   Plaintiff,                           v. RHONDA BEEBE,   Defendant and Appellant;   DAVID MATTICE,   Defendant and Respondent.

F064072   (Super. Ct. No. 09CECG04640)     OPINION

 

            APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County.  Alan M.
Simpson, Judge.

            Rhonda Beebe, in pro. per., for
Defendant and Appellant.

            Wild, Carter & Tipton and Thomas
A. Markeson for Defendant and Respondent.

-ooOoo-

                        Appellant appeals from
the judgment in an interpleader action, which determined that the proceeds of
decedent’s life insurance policy should be distributed in accordance with a
change of beneficiary form executed by decedent and appellant prior to
decedent’s death, rather than pursuant to the original designation of appellant
as the sole beneficiary.  We find no
error in the judgment and affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

            Plaintiff, Farmers New World Life
Insurance Company, filed an interpleader action to obtain a judicial
determination of the rights of competing claimants to the proceeds of a
$400,000 life insurance policy on the life of decedent, Gary Mattice.  Decedent’s widow, Rhonda Beebe, and his
brother, David Mattice, filed claims. 
The remaining named defendants, decedent’s four children,
defaulted.  After depositing the
insurance proceeds with the court, plaintiff was discharged from any liability
in the matter.

            Decedent and Beebe were married May
30, 2006.  The insurance policy on the life of decedent
was issued in November 2006.  Initially,
Beebe was named as the sole beneficiary. 
In early 2007, decedent was diagnosed with cancer.  In September 2008, decedent left the
residence he shared with Beebe and moved into a trailer he parked in his
daughter’s driveway.  In November 2008,
he moved into an apartment owned by his family, which he shared with his
cousin, Mark Williams.  Decedent told
family members he wanted to divorce Beebe. 
Decedent told Williams he did not want to go through another divorce,
and there would not be enough time for it; he wanted to keep peace in the
family and take care of everyone.  

            In October 2008, a change of
beneficiary form was prepared, designating Beebe, David Mattice, and decedent’s
mother, Joyce Mattice as beneficiaries; it indicated Davidhref="#_ftn1" name="_ftnref1" title="">>>[1] was to receive $50,000, Joyce was to receive
$25,000, and Beebe was to receive the remaining $325,000.  The form was never signed.  Decedent wanted certain debts to be paid out
of the insurance funds, but he became concerned Beebe would not pay them; he
wanted David to receive the money and take care of the debts.  A second change of beneficiary form, dated October
24, 2008,
designated that David would receive $280,000, Beebe would receive $80,000, and
decedent’s four children would receive $10,000 each.  Decedent and Beebe signed this change of
beneficiary form.

            After decedent’s death on July
4, 2009,
David and Beebe made claims on the policy. 
In this action, Beebe sought to invalidate the October
24, 2008,
change of beneficiary form on the ground she signed it due to decedent’s fraud
or duress.  Beebe represented herself at
trial; she presented no witnesses and only one exhibit.  The trial court found that Beebe had not
proven she was induced to sign the change of beneficiary form by fraud or
duress.  It entered judgment directing
payment of the policy proceeds in accordance with the October
24, 2008,
beneficiary designation.  Judgment was
entered accordingly.

On December
6, 2011,
Beebe filed her notice of appeal.  On December
7, 2011,
she filed an ex parte application for a stay of distribution of the funds
pending her appeal.  The trial court
apparently granted the stay, but, in response to an alternative writ from this
court, entered a new order vacating the original order and granting a stay only
if Beebe gave an undertaking in the amount of $100,000.  Beebe challenges the judgment of the trial
court and the order conditioning a stay on posting of a $100,000 undertaking.

DISCUSSION

>I.          Court>
Advising Self-represented Party

            “‘A litigant has a right to act as
his own attorney [citation] “but, in so doing, should be restricted to the same
rules of evidence and procedure as is required of those qualified to practice
law before our courts; otherwise, ignorance is unjustly rewarded.”  [Citations.]’”  (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290 (>Doran).) 
“A party proceeding in propria persona ‘is to be treated like any
other party and is entitled to the same, but no greater consideration than
other litigants and attorneys.’ 
[Citation.]”  (>First
American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) 
“While it is the duty of a trial judge presiding over the trial
of a case being conducted by a layman or a laywoman in propria persona to see
that a miscarriage of justice does not occur through inadvertence, he is not
required to act as counsel for that party in the presentation of
evidence.  [Citation.]”  (Taylor
v. Bell (1971) 21 Cal.App.3d 1002, 1008.) 
“‘The fact that a layman elects
to represent himself “certainly does not excuse him from a failure of proof” of
his cause of action.’”  (>Doran, supra, at pp. 290–291.)  

II.        Substantial Evidence of Duress

            In its oral statement of decision,
the trial court stated that it heard the evidence and evaluated it carefully,
but it was “unable to come to the conclusion that Mrs. Beebe’s signing of the
form … that designated which beneficiaries would receive which amounts under
the subject insurance policy … was done as a result of fraud or as a result of
duress.”  Beebe contends this conclusion
was erroneous, because “a reasonable interpretation of the evidence at trial”
was that she would only have signed the document under duress.  Under the substantial evidence standard of
review, however, the question was not whether there was substantial evidence to
support a contrary finding, but whether there was sufficient evidence in the
record to support the findings the trial court made.  (Bowers v. Bernard (1984) 150 Cal.App.3d 870, 873–874.)  Where the trial court finds that the party
with the burden of proof failed to prove one or more elements of his or her
case, “the question for a reviewing court becomes whether the evidence compels
a finding in favor of the appellant as a matter of law.”  (In re
I.W. (2009) 180 Cal.App.4th 1517,
1528.)

            There was href="http://www.fearnotlaw.com/">substantial evidence to support the
court’s implicit finding that Beebe signed the change of beneficiary form; that
fact was not disputed.  There was no
evidence in the record to support a finding that Beebe signed the form under
duress.  David called Beebe as a witness
in his case, but did not elicit any testimony about duress.  Beebe failed to call any witnesses, including
herself; she had only one exhibit admitted, a copy of the October
24, 2008,
change of beneficiary form that included her handwritten notations and
highlighting.  The trial court was not
obligated to act as counsel for Beebe or to advise her how to go about
presenting or proving her case.  She failed
to present any evidence that her signature on the change of beneficiary form
was obtained by fraud or duress.

There
was no evidence before the court from which it could have concluded Beebe
signed the form under duress.  As David
points out, the only mention of duress during the trial was in Beebe’s opening
statement, which was not made under oath or subject to cross-examination, and
was not evidence to be considered at trial. 
(Evid. Code, § 140; CACI No. 106; People v. Arnold (1926) 199 Cal. 471, 486.)  Substantial evidence supported the trial
court’s judgment.

III.       Beebe’s Other Arguments

            Beebe seems to complain of three
omissions by the trial court:  (1) when
David’s attorney, Monrae English, noted she had witnesses in the courtroom, and
asked if they could stay, the court allowed them to stay instead of excluding
them pursuant to Evidence Code section 777; (2) the court permitted David’s
witnesses to testify to hearsay; and (3) when Beebe mentioned that David’s
attorney had misled her by telling her she would present no witnesses, the
court failed to inquire further.

            A.
       Excluding witnesses

            The trial court may exclude nonparty
witnesses from the courtroom when they are not being examined, so that they
cannot hear the testimony of other witnesses. 
(Evid. Code, § 777.)  Beebe
made no request to exclude any witnesses from the courtroom.  Before either party made an opening
statement, the following exchange took place:

 

“MS. ENGLISH [David’s
attorney]:  And, your Honor, I know how
you

like
to run your court, and I do have witnesses in the gallery, if you—

 

“THE COURT:           That’s fine.

 

“MS. ENGLISH:        That’s okay for them to stay?

 

“THE COURT:           Yes.”

            Beebe contends the court should have
excluded the witnesses sua sponte, but instead it “specifically authorized
their staying in the courtroom.”  She
asserts the witnesses “all had tens of thousands of dollars to gain by
fabricating stories or by not telling the truth on the stand,” and they should
have been excluded so they could not hear other witnesses’ testimony and get
their stories straight. 

            “‘“[I]t is fundamental that name=clsccl9>a reviewing court will ordinarily not consider claims made for
the first time on appeal which could have been but were not presented to the
trial court.”’”  (Gonzalez v. >County> of Los Angeles (2004) 122 Cal.App.4th 1124,
1131.)  The rationale for this rule is
that a party should bring errors to the attention of the trial court while
there is an opportunity to correct them; if it does not do so, the party forfeits
any objection to the error.  (>Keener v. Jeld-Wen, Inc. (2009)
46 Cal.4th 247, 264–265.)  If the rule
were otherwise, a party would benefit from remaining silent in the trial court
and raising the objections when it is too late to obviate them.  (Ibid.)  Although David’s attorney addressed the matter in open court
in Beebe’s presence, Beebe did not object to the presence of the witnesses in
the courtroom.  If she had brought the
matter to the court’s attention at the time, it could have been readily
remedied.  The trial court was not obligated
to advise Beebe how to present her case or when to object. 

Even
if we were to find that it was error for the trial court to grant permission
for David’s witnesses to remain in the courtroom without asking Beebe whether
she had any objection, Beebe has not shown that such an error was
prejudicial.  A judgment may not be reversed on appeal unless, after an examination of
the entire cause, including the evidence, it appears the error caused a href="http://www.mcmillanlaw.com/">miscarriage of justice.  (Cal. Const., art. VI, § 13; >Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 574 (Soule).)  “‘The burden is on the appellant in every
case to show that the claimed error is prejudicial; i.e., that it has resulted
in a miscarriage of justice.’ 
[Citation.]”  (>In re Marriage of McLaughlin (2000) 82
Cal.App.4th 327, 337.)  Generally, an
error is not prejudicial “unless there is a reasonable probability that in the
absence of the error, a result more favorable to the appealing party would have
been reached.”  (Soule, supra, 8 Cal.4th at p. 574.)

Other
than Beebe, the three witnesses presented by David were David, decedent’s
daughter, Michell Voissem, and decedent’s cousin, Mark Williams.  As a party, David could not have been
excluded under Evidence Code section 777. 
Mark Williams was not a beneficiary of the insurance policy in issue,
and apparently had no financial stake in the outcome of the litigation.  Voissem was a beneficiary named in the
October 24, 2008, change of beneficiary form. 
She was the first to testify, however, so she did not hear or have the
benefit of the testimony of other witnesses when she testified.  Consequently, Beebe has not shown that
allowing the witnesses to remain in the courtroom during the testimony of other
witnesses resulted in any prejudice. 

>B.        Hearsay

            Beebe complains that the witnesses
were allowed to testify to what decedent told them even though that testimony
was hearsay.  She acknowledges that the
trial court was “not required to teach me how to do a trial,” but argues it
should have limited the questioning pursuant to Evidence Code section 1261
because all of those questions were asked “under circumstances such as to
indicate [their] lack of trustworthiness.” 
Evidence Code section 1261 provides: 


“(a) Evidence of a statement is not made inadmissible by the
hearsay rule when offered in an action upon a claim or demand against the
estate of the declarant if the statement was made upon the personal knowledge
of the declarant at a time when the matter had been recently perceived by him
and while his recollection was clear.

“(b) Evidence of a statement is
inadmissible under this section if the statement was made under circumstances
such as to indicate its lack of trustworthiness.”

            By its terms, this section applies
only “in an action upon a claim or demand against the estate of the
declarant.”  (Evid. Code § 1261,
subd. (a).)  This action does not involve
a claim against decedent’s estate. 
Consequently, the statute does not apply in this case. 

            A judgment may not be reversed due
to the admission of inadmissible evidence
unless an objection to or motion to strike the inadmissible evidence “was
timely made and so stated as to make clear the specific ground of the objection
or motion.”  (Evid. Code, § 353,
subd. (a).)  “Lack of such objection
deprives the proponent of the evidence [of] an opportunity to establish a
better record or some alternative basis for admission.  [Citation.]” 
(Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726, first bracketed insertion added, fn.
omitted.)  Beebe made only one objection
to evidence in the trial court, and that objection was sustained.  She now contends other unspecified testimony
should have been excluded as hearsay, despite lack of any objection.  Beebe is essentially asking that the court
excuse her failure to object to inadmissible evidence because she represented
herself and did not know when and how to make proper and timely objections.  Beebe is governed by the same rules of
evidence and procedure as an attorney and we cannot give her preferential
treatment because she appeared in propria persona.  (Doran, supra, 143 Cal.App.2d at pp. 290–291.)

            If inadmissible hearsay is admitted
without objection, it is evidence that may be considered by the trier of
fact.  (In re C.B. (2010) 190 Cal.App.4th 102, 133.)  Thus, it was not error for the trial court to
consider all the evidence that was presented without objection. 

            C.        Counsel misleading Beebe about calling
witnesses

            Beebe asserts that she told the
trial judge that English misled her about calling witnesses, but the trial
court ignored the issue.  Beebe’s brief
states:  “Prior to the trial, [English]
had told me that she was not going to call any witnesses,” so Beebe was
“totally unprepared” when English began to call witnesses.  Beebe asserts “[t]he judge should have
stopped the proceeding and questioned Ms. English, on the record, about what
she had told me and how she misled me, but he didn’t.”  She claims she was thereby denied a fair
trial.

            The record reflects that English
personally served on Beebe on September 30, 2011, a witness list, which listed
10 witnesses to be called at trial. 
Trial began on October 4, 2011. 
After English examined her first witness and the court asked Beebe if
she had any questions for the witness, Beebe stated that English “this morning
kind of convinced me there weren’t going to be any witnesses,” so Beebe was
“not prepared at all.”  English served her
witness list on Beebe several days prior to trial; Beebe had no reason, at that
time, to believe English would not present witnesses.  Even if, as Beebe charges, English told her
on the morning of trial that she would present no witnesses, Beebe should have
been prepared to proceed with trial, a trial including witness testimony, when
she arrived at court that morning.  She
does not explain how her lack of preparation could be the result of statements
not made to her until the morning of trial. 
She does not suggest any information the trial court would have acquired
by questioning English and Beebe about Beebe’s allegation that she was misled;
she provides no facts the trial court would have learned that would have
resulted in different handling of the issue. 
Consequently, Beebe has not established any prejudicial error arising
out of her allegations that she was misled by English.

IV.       Bond for Stay

            Beebe contends the trial court
improperly required her to post a $100,000 bond in order to stay distribution
of the interpleaded funds during the pendency of the appeal.  We lack jurisdiction to consider this
argument because Beebe failed to appeal from the postjudgment order granting
the stay on condition she post an undertaking.

            A notice of appeal must identify
“the particular judgment or order being appealed.”  (Cal. Rules of Court, rule 8.100(a)(2).)  Beebe’s notice of appeal was filed December
6, 2011, and designated the “Judgment after court trial” as the judgment or
order appealed.  The stay order imposing
the requirement of a $100,000 bond was entered February 24, 2012, more than two
months after the notice of appeal was filed. 
Postjudgment orders staying execution of the judgment are separately
appealable.  (Code Civ. Proc.,
§ 904.1, subd. (a)(2); Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651–652.)  “‘[W]here several judgments and/or orders
occurring close in time are separately appealable …, each appealable judgment
and order must be expressly specified—in either a single notice of appeal or
multiple notices of appeal—in order to be reviewable on appeal.’  [Citation.]” 
(DeZerega v. Meggs (2000)
83 Cal.App.4th 28, 43, last bracketed insertion added.)  Beebe did not file a notice of appeal
specifying that she was appealing from the postjudgment order granting her
request for a stay of distribution of the interpleaded funds.  Accordingly, we lack jurisdiction to review
that order.  (Id. at pp. 43–44.) 

>DISPOSITION

            The judgment is
affirmed.  Respondent is entitled to his
costs on appeal.

 

                                                                                                            _____________________

HILL, P. J.

WE CONCUR:

 

 

_____________________

CORNELL, J.

 

 

_____________________

POOCHIGIAN, J.