of Guinn
Filed
8/27/12 Conservatorship of Guinn 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
Conservatorship of the Person
of JUNE E. GUINN.
M. TERRY CAMPBELL, as
Conservator, etc., et al.,
Petitioners
and Respondents,
v.
LYNDA LUCIDO,
Objector and Appellant;
WESTERN SURETY COMPANY,
Real Party in
Interest and Respondent.
F062901
(Super.
Ct. Nos. 387352 & 388509)
Stanislaus
County
APPEAL
from a judgment of the Superior Court of
County. Loretta M. Begen, Judge.
Lynda
Lucido, in pro. per., for Objector and Appellant.
Terry L.
Campbell for Petitioners and Respondents M. Terry Campbell and Laurie
Jamison.
Lewis
Brisbois Bisgaard & Smith and Jerry Garcia for Real Party in Interest and
Respondent Western Surety Company.
-ooOoo-
Appellant Lynda Lucido appeals from
two orders entered by the trial court in April 2011 regarding the
conservatorship and trust estate of June E. Guinn. One order terminated the conservatorship of
the estate of Guinn, transferred remaining assets into the trust estate, and
left intact the conservatorship of the person.
The other order entered a judgment against appellant and in favor of a
surety, Western Surety Company (Western), to recover sums that Western was
required to pay under its surety bond after appellant was found liable for
funds missing from the estate when she was conservator. As best as we can tell from her appeal,
appellant contends that the proceedings below were invalid because, allegedly,
her prior removal as conservator and trustee and the appointment of M. Terry
Campbell (Campbell) to replace her were based on forged court orders and other
fraud perpetrated on the court. We
conclude that appellant did not meet her burden as the appealing party, failed
to produce an adequate record to support her contentions, and forfeited the
points raised on appeal by failure to present them in the trial court. For all of these reasons, the orders of the
trial court are affirmed.
FACTS AND PROCEDURAL HISTORY
In 2006,
appellant was appointed by the trial court to serve as conservator of the
estate and person of June E. Guinn, appellant’s mother. Appellant was also for a time the trustee of
the Mitchell and June Guinn Family Living Trust (the trust).
removed appellant from both of these positions and appointed Campbell as the
new conservator and trustee, although appellant argues that the trial court’s
orders were invalid. Specifically,
appellant contends that the prior orders of the trial court purportedly
removing her as conservator and trustee and appointing Campbell to replace her
were forged, fraudulent or nonexistent and therefore Campbell was never validly
appointed by the court. In short,
appellant maintains that she
(appellant) continues to be the true conservator and trustee on behalf of
Guinn.
The scant record on appeal
(consisting of a 39-page clerk’s transcript) does little to inform us of the
relevant procedural history and factual background of this case. We can merely note what is included in the
record. The record includes a petition
filed by Campbell in December 2007 seeking appointment as temporary conservator
of the estate of June Guinn. Campbell’s
petition stated: “[C]onservatee [June
Guinn] suffers from Dementia and is subject to Undue Influence. The prior conservator [(appellant)] took the
… conservatee to New Jersey and possibly absconded with … conservatee’s funds
and failed to render an accounting.†The
record does not include the trial court’s ruling on that petition. Even so, subsequent orders that
reflect that Campbell was later serving in the capacity of June Guinn’s
conservator as well as trustee of the trust.
The record also includes a December
2008 order of the trial court on appellant’s motion to vacate or reconsider
numerous prior court orders in this case on grounds of, inter alia, extrinsic
fraud. The trial court rejected
appellant’s claim of extrinsic fraud, finding that “[t]he evidence before the
Court shows that [appellant] relocated frequently and was secretive concerning
her location†and that she likely had actual notice of motions served “on
locations where she had previously resided.â€
could not locate one of the prior orders at issue: an order removing appellant as trustee.
In addition to the matters noted
above, the record on appeal includes a register of actions, a few miscellaneous
minute orders, the petition for termination of conservatorship of the estate,
etc., the two orders appealed from, and appellant’s notice of appeal and
designation of the record on appeal.
Although appellant’s position is
that the trial court’s orders removing her as conservator and trustee and
appointing Campbell to replace her were invalid, appellant failed to include in
the record on appeal any of those prior orders or any of the transcripts of
proceedings related thereto.
name="_ftnref4" title="">[4] However, attached
as exhibits to appellant’s opening brief are a number of purported trial
court documents, including (i) an order to show cause ordering appellant
to appear on December 6, 2007, and to show cause, if any, why the letters of
conservatorship of June Guinn should not be revoked and a new conservator
appointed;
removing appellant as conservator of the person and estate of June Guinn; and
(iii) an order filed April 15, 2008, removing her as trustee. We note that the attached documents were not
part of an appendix under California Rules of Court, rule 8.124.
appendix, but rather requested that the appellate record would consist of a
clerk’s transcript. The records attached
to her opening brief were not designated to be included as part of the clerk’s
transcript in “Appellant’s Notice
Designating Record On Appeal.â€
Likewise, Campbell attached
exhibits to her respondent’s brief, including the following trial court
documents: (i) An order filed
December 14, 2007, removing appellant as conservator and revoking her letters
of conservatorship; (ii) An order filed April 15, 2008, removing appellant
as trustee of the trust; (iii) An order filed April 15, 2008, appointing
Campbell as trustee of the trust; (iv) An order filed November 19,
2010, appointing Campbell and another person, Laurie Jamison, as co-conservators
of the person and estate of June Guinn.
Western followed the same practice.
Western attached as an exhibit to its respondent’s brief the order dated
July 24, 2009, by which the trial court imposed liability against appellant for
funds missing from the conservatorship during appellant’s tenure as
conservator, and ordered Western to pay $104,000 to the estate, the amount of
its surety bond.
In attaching trial court documents
that were not part of the certified record on appeal, the parties failed to follow
the procedures for designating, correcting or augmenting an appellate
record. (See rules 8.120, 8.121, 8.122,
8.155; cf. rule 8.204(d) [parties may attach to their briefs copies of
documents that are “in the appellate record,†not to exceed 10 pages].) Nor has there been, to our knowledge, a
motion requesting judicial notice of any of the attached documents. (See, e.g., Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th
736, 744 [Court of Appeal refused to consider matters attached to briefs where
no compliance with rules of court or procedures for requesting judicial
notice]; see, e.g., rule 8.252 [procedures for seeking judicial notice by
reviewing court]; Evid. Code, § 459 [same].) In any event, as explained below, even
considering the uncertified documents attached to the parties’ briefs, we would
conclude that appellant failed to meet her burden on appeal.
Of course, appellant’s appeal is
appellant or appointing Campbell, or from any other order attached to the
parties’ briefs. We now turn our
attention to the April 2011 orders from which appellant has appealed.
The Orders From Which Appellant Appeals
1.
Order Granting
Petition Regarding Conservatorship, Etc.
On February 16, 2011, Campbell and Laurie Jamison, as
co-conservators of the estate and person of June Guinn, filed a petition in the
trial court. The petition began with the
following recitals: “[Campbell and
Laurie Jamison] are the Co-Conservators of the Person and Estate of JUNE E.
GUINN. [Campbell] was appointed
Conservator of the Estate on December 7, 2007. Letters of Conservatorship were issued to her
on December 13, 2007. Laurie Jamison was
appointed Conservator of the Estate on November 10, 2010 to serve with
[Campbell]. [Campbell] and Laurie
Jamison were appointed Conservators of the Person on November 10, 2010. New Letters of Conservatorship of the Person
and Estate were issued to them on November 19, 2010, and at all times since
their appointment, they have been acting as such Co-Conservators.†The petition further recited that the persons
entitled to notice of the petition included the following relatives of June
Guinn: appellant (adult daughter), Cheryle
E. Morris (adult daughter), Mitchell E. Guinn (adult son), Sheila R. Guinn
(adult daughter), and Murial Marcum (adult sister). The petition stated that “[t]he Conservatee
is also entitled to the notice of these proceedings [and s]he will be provided
notice; however, due to the actions of [appellant], the Conservatee’s address is
being kept confidential.†The petition
further noted that “[Campbell] is currently acting as Trustee of the Mitchell And June Guinn Family Trust dated
November 21, 1991 …, having been appointed as such in Stanislaus County
Superior Court Case No. 388509.â€
The
petition then outlined the nature of the relief sought. It explained:
“The Conservatorship of the Estate of June
Guinn would no longer be required if the assets held in the
Conservatorship estate were transferred to the Trustee of the Trust. The purpose of transferring the assets is to
benefit the Conservatee and her estate by simplifying the management of
Conservatee’s assets and eliminating the expense of two court accountings. The Trustee would continue to file
accountings in the trust matter (Case No. 388509) which would include all of
the Conservatee’s assets and all of the trust assets.†Additionally, “[Campbell] further requests
that the Court appoint Laurie Jamison
as Co-Trustee of the Mitchell and June Guinn Family Trust dated November 21,
1991.†The petition noted that an order
settling the second account and report of conservator was filed on November 19,
2010, setting forth an accounting of the assets in the Conservatorship estate,
which assets were reiterated in the petition.
The petition
requested that the trial court make the following orders: (1) “The Conservatorship of the Estate
of JUNE E. GUINN, Conservatee, be terminatedâ€; (2) “The Conservatorship of
the Person of JUNE E. GUINN, Conservatee, remain in placeâ€; (3) “Amended Letters
of Conservatorship be issuedâ€; (4) “[Campbell and Laurie Jamison] be
authorized and directed to deliver all Conservatorship estate assets in their
possession to [Campbell], Trustee of the … Trustâ€;
(5) “Laurie Jamison be
appointed Co-Trustee of the … Trust,
to act together with [Campbell]â€; and (6) “On delivering the property as
herein set forth and filing the proper receipts, [Campbell] and Laurie Jamison, as the Co-Conservators
of the Estate, be discharged from their duties as Co-Conservators of the Estate
and the surety on their bond discharged.
However, said discharge will be subject to the Court’s approval of the
co-conservators’ final account for the period of January 1, 2010 to the date of
the transfer of the assets to the trust estate.â€
Appellant
did not file any opposition to the petition and she did not appear at the
April 7, 2011 hearing. The trial
court granted the petition. The trial
court’s order granting the petition was entered on April 21, 2011.
2.
Order of Judgment
for Western
As summarized in the parties’
briefs, appellant was found by the trial court to have failed to account for
funds of the conservatee, June Guinn, during the period of time that she was
acting as conservator of the estate of June Guinn. The trial court’s order of July 24,
2009, surcharged appellant in the amount of $322,089.22 and ordered Western to
pay to the estate the amount of $104,000, the amount of its surety bond. Appellant did not appeal from that order.
Western thereafter brought a
petition to obtain a judgment in the amount of $104,000 plus its attorney fees
and costs against appellant. The hearing
of Western’s petition was set for April 7, 2011. Appellant did not appear at the hearing or
file any opposition. The trial court
granted Western’s petition. On April 21,
2011, the trial court entered its written “Order
Of Judgment†in favor of Western, against appellant, in the sum of
$148,433.10, and Western’s surety bond in the amount of $104,000 was ordered
exonerated.
Appellant
appealed from both of the above described trial court orders entered on April
21, 2011. Respondents Campbell and
Western filed separate respondent’s briefs.
DISCUSSION
Appellant
Failed to Meet Burden on Appeal
“A judgment or order of a lower
court is presumed to be correct on appeal, and all intendments and presumptions
are indulged in favor of its correctness.â€
(In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133.) Because a
trial court’s order is presumed to be correct, error must be affirmatively
shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, an appellant must affirmatively show
prejudicial error based on adequate legal argument and citation to the
record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th
547, 556-557; Duarte v. Chino
849, 856; McComber v. Wells (1999) 72
Cal.App.4th 512, 522-523.) These
requirements apply equally to appellants acting without an attorney. (McComber
v. Wells, supra, at p. 523.) When points are perfunctorily raised, without
adequate analysis and authority or without citation to an adequate record, we
pass them over and treat them as abandoned.
(People v. Stanley (1995) 10
Cal.4th 764, 793; Landry v. Berryessa
Union School Dist. (1995) 39
Cal.App.4th 691, 699-700.) Failure to
provide an adequate record on an issue requires that the issue be resolved
against the appellant. (Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
Here, it appears that appellant is challenging the recent rulings below
(entered April 21, 2011) on the ground that many years before that time, she
was improperly removed as conservator and trustee and Campbell was not validly
appointed to replace her. We reject
appellant’s contentions as wholly unsupported.
Appellant has failed to (i) support her contentions by citing to
portions of the record that demonstrate grounds for reversal, and
(ii) provide relevant legal authority and argument in support of her
position that there was reversible error.
The record on appeal is inadequate to show any fraud (whether extrinsic
or otherwise) or forgery. Even if we
considered the uncertified documents attached to the parties’ briefs,
appellant’s appeal—to the extent it is comprehensible—is premised entirely on
her own vague conclusions and conjecture.
If anything, the attached documents confirm that appellant was duly
removed from her position and replaced by Campbell. We conclude that as to both of the orders
appealed from, appellant has failed to meet her burden as the appealing party.
Points Not Raised Below Waived on Appeal
In this case, the two orders
appealed from by appellant arose out of noticed hearings on April 7, 2011, and
written orders were filed by the trial court on April 21, 2011. The record does not reflect that appellant
filed any opposition, made any objection or even appeared at the hearing. In short, it appears the issues raised by
appellant on appeal were not presented in the trial court. We therefore decline to consider them. An appellate
court generally will not consider a matter presented for the first time on appeal (Franz v. Board of
Medical Quality Assurance (1982) 31 Cal.3d 124, 143), and a failure to
raise an issue or argument in the trial court will result in it being forfeited
on appeal (Kaufman
Plastering, Inc. (2006) 136 Cal.App.4th 212, 226; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346,
1381 [failure to raise issue in trial court waives
the point on appeal]). Moreover, “[t]he
general rule that a legal theory may not be raised for the first time on appeal
is to be stringently applied when the new theory depends on controverted
factual questions whose relevance thereto was not made to appear at trial. [Citation.]â€
(Bogacki v. Board of Supervisors
(1971) 5 Cal.3d 771, 780.) That is
clearly the case here. We hold that appellant’s
contentions are forfeited on appeal.
Further, the trial court would have
been well aware of who was duly appointed by it to act as conservator and trustee
in this matter. Appellant’s assertions
that she was the true conservator/trustee, not Campbell, and/or that Campbell’s
appointment was accomplished by fraud or
forgery, if properly raised below, could have been easily disposed of by
the trial court. Although no error was
shown in this case, the following quotation from a respected treatise is
otherwise on point: “An appellate
court will ordinarily not consider procedural defects or erroneous rulings in
connection with relief sought or defenses asserted, where an objection could
have been, but was not, presented to the lower court by some appropriate
method. [Citations.] [¶] … [¶] … Often … the explanation [for this rule] is
simply that it is unfair to the trial
judge and to the adverse party to take advantage of an error on appeal when it
could easily have been corrected at the trial.†(9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 400, pp. 458-459, italics added.)
DISPOSITION
The
orders of the trial court are affirmed.
Costs on appeal are awarded to Campbell and Western.
_____________________
Kane, Acting P.J.
WE CONCUR:
_____________________
Detjen, J.
_____________________
Franson, J.
name="_ftn1" title="">[1] The
conservatorship was Stanislaus County Superior Court case No. 387352, and
the trust proceeding was Stanislaus County Superior Court case No. 388509.
name="_ftn2" title="">[2] The
trial court did grant a new hearing on the issue of the surcharge (finding of
liability to the estate) previously ordered against appellant, and that new
hearing was held in July 2009. Following
the rehearing, the trial court confirmed appellant’s liability in the amount of
$322,089.22.
