Tolhurst v. McAlindon
Filed 6/27/12 Tolhurst v. McAlindon CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
DIANE K.
TOLHURST,
Plaintiff and Appellant,
v.
BRIAN
MCALINDON,
Defendant and Respondent.
A132217
(Sonoma
County
Super. Ct.
No. SPR078287)
Harry
McAlindon died on April 17, 2006. A will contest between Harry’s
appellant Diane Tolhurst and Harry’s five children, including respondent Brian
McAlindon, followed. The parties,
represented by counsel, entered into a written
agreement settling that litigation in April 2008, and the probate
estate was closed. Two years later
Tolhurst made three successive and unsuccessful attempts to rescind the
settlement. She appeals from the denial
of her most recent efforts. We affirm.
I. Background
Tolhurst
was Harry’s fiancé and lived with him from 1987. Record excerpts filed with Tolhurst’s appeal
reflect an acrimonious relationship between Tolhurst and Harry’s children. In 2001, Brian filed a petition in the
County Superior Court seeking a conservatorship for Harry, alleging that
Tolhurst had fraudulently obtained a power of attorney from Harry, at a time
when Harry lacked capacity. It appears
that the question of Harry’s capacity to deal with his own affairs was then
litigated between the parties over the next several years.
probate of the will, and on May 17, 2006, Brian filed a contest. A trial date was set for May 2,
2008. The parties, including Brian’s
siblings, participated in mediation and reached a settlement of the will
contest, memorialized in a written settlement agreement and mutual general release
(the Settlement), which included a stipulated disposition of Harry’s
estate. The Settlement provided for a
division of cash in the estate (with Tolhurst receiving 45 percent of the
net cash), and for sale of Harry’s real property in 2011, with the proceeds to
be divided among Tolhurst and Harry’s children.
Tolhurst was given the right to occupy the property rent free until
April 1, 2011. The will contest was
dismissed on April 30, 2008, consistent with the terms of the Settlement. The Court then granted the petition of the
special administrator of the estate for preliminary distribution. The special administrator submitted a final
accounting in October 2008. The
final accounting and a petition for final distribution was approved by the
court on November 5, 2008.
On
February 11, 2010, Tolhurst filed a pro se “Petition to Overturn All
Settlement Agreements” (the First Motion).
She alleged that the Settlement “is based on the fraud and abuse of the
wrongful conservatorship of Harry McAlindon . . . which began on
June 14, 2001 in the San Mateo Court.”
The First Motion was denied by the court (Hon. Elaine Rushing), without
prejudice, after hearing on March 10, 2010.
On
November 22, 2010, Tolhurst filed a “Motion to Revoke Settlement Agreement, to
Quash the Will Contest, and to Establish Probate” (the Second Motion). She again alleged that Brian was guilty of
“forgery fraud and identity theft” in the various conservatorship proceedings,
and contended that her former attorney had caused her to sign the Settlement
“under duress.” That motion was also
denied by Judge Rushing after hearing on December 28, 2010. The court found “[Tolhurst’s] reliance upon
[Code of Civil Procedure
name="_ftnref4" title="">[4]] section 438[,
subdivision] (c), Probate Code section 259 and . . . section
2017.310[, subdivision] (a) is misplaced, as these statutes do not provide
the Court with a basis for the relief requested.” The court further stated that “[Tolhurst] has
failed to demonstrate new facts, law or circumstances that were not previously
considered. (Section 1008[,
subdivision] (a); Garcia v. Hejmadi
(1997) 58 Cal.App.4th. 674, 692.) . . . The motion is entirely
untimely, as it was filed two years and nine months after the settlement
agreement was reached. Thus
procedurally, the Court is without jurisdiction to ‘revoke’ or set the agreement
aside.”
Undeterred,
Tolhurst filed an “Application to Reconsider the Motion to Revoke the
Settlement Agreement and Mutual General Release of December 28, 2010” (the
Third Motion) on January 7, 2011.
Tolhurst cited section 473, and again asserted that her former
attorney had “authored the settlement agreement” against her will that he had
coerced her into signing the Settlement while she was in poor health, with
“diminished acuity” and under financial duress.
That motion was denied by the court (Hon. Mark Tansil) after hearing on
or about February 15, 2011. The
court found: “The underlying motion was
heard and denied by Judge Elaine Rushing on December 28, 2010. . . .
[¶] [T]he current matter must be denied because it patently fails to state any new
facts, circumstances or law. [¶] There are no grounds for reconsideration. The court will not impose sanctions at this
time; however, it is noted that Tolhurst has actually filed three different,
unsuccessful motions on this same subject.
Further frivolous litigation could lead to sanctions.”
Tolhurst
filed a notice of appeal on May 31,
2011.
II. Discussion
A. Appellate
Jurisdiction
At
the outset, we address Brian’s contention that this appeal is untimely and must
be dismissed. Brian correctly notes that
Tolhurst fails in the first instance to comply with California Rules of Court,
rule 8.204(a)(2)(B)
title="">[5] in
that her opening brief fails to state that the judgment appealed from is final,
or explain why the order appealed from is appealable. He is also correct that such a failure would
justify striking the appellant’s opening brief.
v. Lennane (2000) 84 Cal.App.4th 536, 557.)
Because we believe that there is an appealable order, we elect not to do
so.
This
is a probate proceeding. Section 904.1,
subdivision (a)(10) provides that an appeal may be taken “[f]rom an order
made appealable by the provisions of the Probate Code . . . .” “It is well established that ‘[a]ppeals which
may be taken from orders in probate proceedings are set forth in
. . . the Probate Code, and its provisions are exclusive.’ [Citation.]
‘There is no right to appeal from any orders in probate except those
specified in the Probate Code.’
[Citation.]” (
115 Cal.App.4th 1118, 1125–1126.)
Appealable orders in proceedings for administration of a decedent’s
estate are set forth in Probate Code section 1303.
Belatedly,
in her reply brief, Tolhurst asserts that the trial court orders denying her
motions are appealable under Probate Code section 1303, subdivisions (a)
and (f). Subdivision (a) of Probate
Code section 1303 deals with “[g]ranting or revoking letters to a personal
representative, except letters of special administration or letters of special
administration with general powers.”
Tolhurst fails to explain how that section might apply here. Subdivision (f), however, provides for
appeal from orders “[d]etermining heirship, succession, entitlement, or the
persons to whom distribution should be made.”
That section would be at least arguably applicable to Tolhurst’s
de facto attempts to vacate the court’s distribution orders made pursuant
to the Settlement.
Tolhurst’s
notice of appeal filed on May 31, 2011, purports to appeal from the December
28, 2010 order on the Second Motion and from the February 15, 2011 denial
of her Third Motion for reconsideration.
(§ 1008) is not separately appealable.
(Tate v. Wilburn (2010)
184 Cal.App.4th 150, 158–159 (Tate);
In re Marriage of Burgard (1999) 72
Cal.App.4th 74.) The policy reasons for
determining that denials of motions for
reconsideration are not appealable are “ ‘ “to eliminate the
possibilities that (1) a nonappealable order or judgment would be made
appealable, (2) a party would have two appeals from the same decision, and
(3) a party would obtain an unwarranted extension of time to appeal. [Citation.]”
[Citation.]’ ” (
is also not among the orders made appealable by the Probate Code, and is
therefore not appealable in a probate proceeding. (Estate
of Stoddart, supra, 115 Cal.App.4th at pp. 1125–1126.) While Tolhurst also attempted to rely on
section 473 in her Third Motion, the general rule allowing appeals from an
order denying a statutory motion for relief under section 473 does not apply in
probate, and these orders are not appealable.
(Estate of Wilhelm (1957) 152
Cal.App.2d 803, 805; see also 9 Witkin, Cal. Procedure (5th ed. 2008)
Appeals, § 207, pp. 281–282.)
The February 15, 2011 order is therefore not appealable.
Brian
argues that the December 28, 2010 order is likewise not appealable, since
it was nothing more than a request for reconsideration of the court’s March 10,
2010 order denying the First Motion.
Were Brian correct on this point, the appeal would unquestionably be
untimely, and dismissal would be required.
“Unless a statute or rule . . . provides otherwise, a notice of
appeal must be filed on or before the earliest of: [¶] (1) 60 days
after the superior court clerk serves the party filing the notice of appeal
with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy
of the judgment, showing the date either was served; [¶] (2) 60 days
after the party filing the notice of appeal serves or is served by a party with
a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the
judgment, accompanied by proof of service; or [¶] (3) 180 days after
entry of judgment.” (Rule
8.104(a)(1)–(3).) The time for appeal
from the March 10 order expired, at the latest, in September 2010. Timely filing is essential to an appellate
court’s power to entertain an appeal. (
Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
Brian
is correct that Judge Rushing cited section 1008, subdivision (a) in
her December 2010 ruling, and found that Tolhurst “failed to demonstrate new
facts, law or circumstances that were not previously considered.” But for reasons not readily apparent in the
very limited record before us, Judge Rushing, in March 2010, also denied
Tolhurst’s First Motion “without prejudice.”
“ ‘The term “without prejudice” . . . means that there is
no decision of the controversy on its merits, and leaves the whole subject
. . . open to another application . . . .’ [Citations.]”
(Devereaux v. Latham & Watkins
(1995) 32 Cal.App.4th 1571, 1587, disapproved on another point in
LLP (2007) 40 Cal.4th 780, 785, fn. 7.) Denial of a motion without prejudice
impliedly invites the moving party to renew the motion at a later date,
rendering section 1008 inapplicable to the denial. (Farber
v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007,
1015.) The December 28, 2010 order
was the final dispositive ruling and is therefore appealable. (Estate
of Miramontes-Najera, supra, 118 Cal.App.4th at
pp. 755–756.) The appeal from that
order, at least so far as we can tell from this record, is timely. (Rule 8.104(a)(3).)
B. Denial
of the Second Motion
Having
determined Tolhurst’s appeal to be timely, we deny it on the merits. In the first instance, Tolhurst appears to
misperceive our role as an appellate court.
She reiterates her trial court arguments, apparently seeking to have us
adjudicate her claims de novo. Her
briefing is completely unhelpful. She
articulates no standard of review and her citations to the “record” appear to
be largely references to documents included in her “Appendix” that may, or may
not, have been presented to the trial court.
(See Castaneda v. Holcomb (1981)
114 Cal.App.3d 939, 946 [exhibit to brief that is not part of record on appeal
disregarded]; see also rule 8.204(d) [attachments to briefs must consist of
materials in the record or relevant regulations, rules, statutes, or other
similar citable materials].) She also
seems unaware of the rule that “an appealed judgment is presumed correct, and
appellant bears the burden of overcoming the presumption of correctness. [Citation.]”
(Boyle v. CertainTeed Corp.
(2006) 137 Cal.App.4th 645, 649–650 (Boyle).) “The [appellant] must affirmatively show
error by an adequate record.
[Citations.] Error is never
presumed. It is incumbent on the
[appellant] to make it affirmatively appear that error was committed by the
trial court. [Citations.]
. . . All intendments and presumptions are indulged to support [the
judgment] on matters as to which the record is
silent . . . .’
[Citation.]” (
706, 712.) As a result, on appeal “the
party asserting trial court error may not . . . rest on the bare
assertion of error but must present argument and legal authority on each point raised. [Citation.]”
(Boyle, supra, 137 Cal.App.4th
at p. 649.) “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to
authority and citations to facts in the record that support the claim of error. [Citations.]”
(In re S.C. (2006) 138 Cal.App.4th
396, 408; see also rule 8.204(a)(1)(C).)
Tolhurst does neither. We are not
required to search the record on our own seeking trial court error. (Nwosu
v. Uba, supra, 122 Cal.App.4th at p. 1246.) When an appellant raises an issue “but fails to
support it with reasoned argument and citations to authority, we treat the
point as waived. [Citations.]” (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)
Even
if we were not to deem Tolhurst’s arguments forfeited, we would find no basis
for reversal. Harry’s estate was settled
in 2008. The unappealed orders for
preliminary and final distribution “bind[] and [are] conclusive as to the
rights of all interested persons.”
(Prob. Code, § 11605; Estate
of Strader (2003) 107 Cal.App.4th 996, 1003, fn. 6.) Generally, once the time for appealing such
an order has passed, a court may only set aside or modify the order based only
on its equitable jurisdiction to correct extrinsic fraud or mistake, which the
moving party must demonstrate. (
Cal.App.4th 229, 237; Estate of Beard
(1999) 71 Cal.App.4th 753, 774 (Beard).) “As an incident of its function of settling
the estates of deceased persons and passing upon final accounts, a court
sitting in probate has continuing jurisdiction to determine any questions
arising from controversies over the administration of estate property, in order
to prevent fraud and waste.
[Citations.]” (
jurisdiction over the subject matter of the parties’ dispute not only as a
function of its probate obligation to control the proceedings before it and
thereby protect the integrity of the estate, but in order to enforce the terms
of the parties’ Compromise Agreement and Original Settlement. [Citations.]
‘When parties to litigation appear before the court and advise it that
the controversy has been settled and the terms thereof, courts must have the
ability to enforce those agreements.
This is necessary not only to control the proceedings before the court,
but also to protect the interests of parties who may have materially altered
their positions in reliance on the settlement.’
[Citation.]” (
Claimed
fraud must be “extrinsic”—i.e., some form of fraud or concealment that
prevented the claimant from having a fair opportunity to appear and be
heard. (Estate of Sanders (1985) 40 Cal.3d 607, 616–619; see
1139, 1149.) It customarily arises when
one party has deliberately been kept ignorant of the proceeding or in some
other way been fraudulently prevented from presenting his or her claim or
defense. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471 (Kulchar).) Relief based on
extrinsic mistake may be shown when the moving party demonstrates excusable
neglect, hardship or other grounds for the failure to press a claim or defense,
which results in an unjust order made without a fair adversary hearing. (Ibid.;
Beard, supra, 71 Cal.App.4th at
p. 775.)
Tolhurst
claimed irregularities and misconduct in the previously consolidated
conservatorship proceedings, and that Brian thus had no “standing” to file the
will contest. She alleged nothing that
would have prevented her from pursuing, at the time of the will contest, any of
the matters she now asserts, and the “fraud” alleged by Tolhurst was, in any
event, intrinsic to the probate proceedings.
Her claim of “mistake” was simply that her attorney had negotiated the
settlement against her wishes and that she had acquiesced under duress, due to
an illness.
The
standard of review applicable to the denial or grant of a motion to set aside a
prior order due to extrinsic fraud or
mistake has sometimes been denominated abuse of discretion (see, e.g.,
788, 792), but it is more accurately characterized as an amalgam of the
substantial evidence and abuse of discretion standards. The trial court’s ruling will be upheld if it
could have determined there was substantial evidence of extrinsic fraud or
mistake, or, conversely, if it could have determined there was insufficient
evidence of extrinsic fraud or mistake.
(See, e.g., Kulchar, supra, 1
Cal.3d at pp. 472–474; Beard, supra,
71 Cal.App.4th at p. 775.)
By
failing to provide a complete record and to fairly state the evidence before
the trial court, Tolhurst has forfeited any substantial evidence argument. (See Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218.) The trial court
could reasonably conclude that the equities in this case favored “ ‘the
interests of parties who may have materially altered their positions in
reliance on the settlement’ ” rather than Tolhurst. (See Beard,
supra, 71 Cal.App.4th at p. 772.)
We
cannot say on this record that the trial court abused its discretion in finding
that Tolhurst failed to present evidence sufficient to establish her
entitlement to equitable relief.
III. Disposition
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
bear the same surname, we use first names where necessary to avoid
confusion. No disrespect is intended.
of her “Appendix to the Opening Brief” excerpts from records of conservatorship
proceedings in both San Mateo and Sonoma County Superior Courts. Like most of the materials in Tolhurst’s
appendix, it is not at all clear that any of these documents were ever before
the trial court in the instant case. To
the very limited extent that we find them relevant here at all, we take judicial
notice of the records of those proceedings.
(Evid. Code, § 452, subd. (d).)
