Opinion
H045566
03-04-2020
Conservatorship of the Person and Estate of CARL E. LINDOW. DARREN WALLACE, as Conservator, etc., Petitioner and Respondent, v. ROBERT LINDOW, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17PR180722)
Appellant Robert Lindow seeks review of two orders relating to the conservatorship of his brother, Carl, and the disposition of Carl's real property. He asserts multiple procedural and evidentiary errors that he believes amount to a violation of his due process right to a fair trial. Of the arguments that are cognizable in this appeal, we find no merit in any of them. Accordingly, we must affirm the orders.
Background
Appellant filed his notice of appeal from two orders: one filed on February 9, 2018, declaring Carl's real property in Aptos to be an asset of his conservatorship estate and denying appellant's affirmative defenses and "counter claims"; the other, filed January 10, 2018, granting to the estate the proceeds of an auction of the personal property at the Aptos residence.
In his opening brief appellant purports to summarize the extensive factual history underlying these orders, from his move to California in 2006 through the court's order of February 9, 2018. Aside from references to some of the documents filed during the litigation, appellant fails to support any of his factual assertions by citing the record. Instead, the brief is replete with presumptions and one-sided statements alluding to Carl's purchase of the Aptos home for appellant in 2008; a claim that appellant and his wife expended "hundreds of thousands of dollars" on improvements; personal attacks on the character of the conservator of Carl's person; a description of the "scheme" to steal his personal property through the auction; and assertions of the "obvious" integrity and credentials of his handwriting expert. Addressing a dispute over a "land contract" he claimed Carl had signed conveying the Aptos property to him, appellant accuses the court of taking "the easy way out" by declaring that the land contract was invalid. He asserts that the court "failed to comprehend the case" and was "like a deer caught in headlights" when approached with his motion for reconsideration. And he declares that the court did not "have the foggiest that there was a difference between 'adequacy' [and] 'existence' " of consideration. (Fn. omitted.)
These inappropriate and often sarcastic attacks on the integrity and competence of the court and witnesses accomplish nothing to further appellant's position on appeal. Moreover, his complete lack of attention to the Rules of Court vitiates his entire factual summary. Rule 8.204(a)(1)(C) of the California Rules of Court requires every brief to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." And an opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C), italics added.) Appellant's opening brief complies with neither of these requirements. "It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.) We will therefore disregard the entire statement of facts in appellant's brief.
None of the hearings in this matter was reported. The clerk's transcript, however, discloses the following facts. Carl bought the Aptos property in 2008 for $1,070,000, paying cash of $445,000 with a loan of $625,000. He allowed appellant and appellant's wife, Deborah Olinyk, to live there "because [he] wanted to help [his] brother." Neither occupant paid anything for their use of the property; Carl paid all mortgage, property taxes and insurance payments.
In March 2017 Carl's adopted daughter, Monica Lisa Perkins, petitioned the superior court to appoint her conservator of Carl's person and to appoint Darren Wallace, a professional fiduciary, conservator of Carl's estate. The court appointed Perkins and Wallace as temporary conservators and thereafter appointed counsel for Carl. Wallace served a Notice to Vacate on appellant and Olinyk on March 24, 2017.
On June 6, 2017, over appellant's objection, the court issued the requested appointment order, followed by letters of conservatorship. The conservatorship appointment included the power to evict appellant and Olinyk from the Aptos property, to sell that property, to investigate and pursue an action for financial abuse, and to perform other acts to protect the estate from financial harm. An "objection" to the conservatorship, together with a 17-page explanation, was purportedly drafted and signed by Carl and filed by Robert on April 10, 2017. When Carl's appointed attorney, Steven L. Yarbrough, met with Carl, Carl said he did not recall reading the "objection" and had not signed it.
In May 2017 appellant filed a complaint in the federal district court, naming Perkins, Wallace, and two of the attorneys involved in the conservatorship. In that action he alleged abuse of process and intentional infliction of emotional distress and sought compensatory and punitive damages and injunctive relief. He also requested a declaration that he was the valid purchaser of the Aptos property under a "land contract" between him and Carl. The superior court authorized the appointment of defense counsel, the payment of attorney fees and costs for the defense from the estate, and the pursuit of sanctions against appellant. The federal case was eventually dismissed.
On June 8, 2017 Wallace filed a complaint for unlawful detainer against appellant and Olinyk in the Santa Cruz County Superior Court. By way of defense, appellant again asserted the existence of the "land contract," though in the attached document he redacted all sections that he deemed to be "irrelevant and immaterial," including the purchase price and payment terms. Wallace's action was successful, however, and the court ordered appellant and Olinyk to vacate the property and pay $16,711.80 in damages and costs. Appellant did not appeal from the unlawful detainer judgment, which was entered on July 31, 2017.
On August 22, 2017 appellant filed a first amended complaint in the Santa Cruz County Superior Court, naming Carl as "real party in interest." In that pleading he sought declaratory relief and specific performance of the "installment land contract," based on the alleged sale of the Aptos property from Carl to appellant and Olinyk. Appellant also requested an injunction to prevent the sale of the property. Counsel was again appointed to enable Wallace to defend Carl.
The alleged "Land Contract Agreement," in its unredacted form, stated that Carl agreed to sell the Aptos property to appellant and Olinyk for $626,204.59, the balance owed on the mortgage, "plus one dollar and other valuable consideration." As for payment terms, it was "the intention of the Vendor [i.e., Carl], to grant a gift(s) [sic] to Vendees to any extent necessary regarding the purchase price and payments on this land contract." Accordingly, the document further stated, "Until Purchasers are able to obtain refinancing on terms that are agreeable to them, at their sole discretion, the monthly payments shall be one dollar per month. Interest shall not accrue. Seller shall pay any mortgage payments, taxes and insurance as required by the mortgage." (Italics added.)
The "other consideration," which was said to compensate for the price being below Carl's purchase price, included "certain options subject to vesting" in appellant's limited liability company, "and with the further understanding that Purchaser's [sic] may remember Vendor's two daughters in their Last Wills and Testaments under conditions that we have fully discussed."
Meanwhile, on August 7, 2017, Wallace filed a petition under Probate Code section 850 (the section 850 petition) for an order confirming the conservatorship assets. In support of the petition Carl submitted a declaration stating that he had not signed the "land contract" claimed by appellant. He further stated that the terms of the document "are so one-sided that I would never have agreed to it. The contract calls for me to pay the mortgage, taxes and insurance for up to 30 years, or until Robert and Deborah obtained financing to purchase the property. They have sole discretion as to when to obtain such financing. They have made no effort to purchase the property from me." Carl further noted that appellant and Olinyk had "sole discretion"—which appellant had previously admitted they had not exercised—to pay the $ 1 per month in "rent." In addition, the stated purchase price of $626,204.59 was "hundreds of thousands [of dollars] less" than the $1,070,000 Carl had paid for the property, which currently was worth about $1.8 million. Consistent with Carl's declaration, Wallace asserted that Carl had not signed the purported land contract, that it lacked consideration, and that it was unconscionable.
All further statutory references are to the Probate Code unless otherwise indicated.
In September 2017 appellant opposed the section 850 petition in the form of a formal objection, a motion for relief, a motion for protective order, a request for extension of time to respond, and a demurrer, in which he sought dismissal of the petition or a stay. The superior court overruled appellant's demurrer and denied the requested relief. Appellant thereafter submitted additional arguments supporting his unsuccessful pleadings. He also filed his response to the petition and a "Counter Petition" asserting several causes of action and affirmative defenses, including specific performance, declaratory relief, equitable estoppel, unclean hands, "the applicable statutes of limitations," laches, unconscionability, breach of contract, and promissory estoppel.
On November 29, 2017, after extensive litigation, the court ruled that the "land contract" was invalid and directed counsel for the conservators to prepare an order on the section 850 petition. On December 11, 2017, appellant renewed his previous arguments in a "Brief of Issues" and moved for reconsideration, which the court heard and denied on January 10, 2018. Also on January 10, the court issued an order granting Wallace's "Petition for Instructions Regarding Auction Proceeds," which Wallace had filed on November 8, 2017. The auction of personal property from the residence, authorized by the unlawful detainer judgment, had taken place on September 30, 2017, after proper notice to appellant and Olinyk, and after withstanding appellant's attempts to block the proceedings and intimidate prospective buyers.
Finally, on February 9, 2018, the court rejected appellant's affirmative defenses and claims and confirmed the Aptos property as an asset of Carl's conservatorship estate. Appellant then filed a notice of appeal from that order, followed by a notice of appeal from the January 10, 2018 order instructing Wallace on the disposition of the auction proceeds. Both orders are appealable. (§ 1300; Estate of Redfield (2011) 193 Cal.App.4th 1526, 1534.)
Discussion
1. The Section 850 Order
Before considering the merits of appellant's contentions, we must address Wallace's argument that the section 850 appeal is moot, because the Aptos property has been sold. Both parties agree that the sale took place on February 21, 2019 and that the deed was recorded on March 5, 2019. Appellant insists, however, that the conservator's position is "ludicrous" for several reasons, including that the appeal was stayed under section 1310, subdivision (a). Without citing any evidence, he further suggests that the circumstances of the sale make it "suspect," and that "the attorneys sold the property for their own benefit."
We take judicial notice of exhibit 14 submitted with Wallace's opposition to appellant's petition for writ of supersedeas in this court. That document consists of a grant deed to the purchaser of the Aptos property, recorded on March 5, 2019.
We agree with Wallace that the appeal of the section 850 order is moot. An appeal will be deemed moot "when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' " (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) Of course, the court has inherent power to decide a technically moot case if "the issues presented are important and of continuing interest." (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 418.) Appellant does not rely on this exception, however, and it is inapplicable in any event. Here the sale of the property is complete and title has already transferred from Carl to the new owner. Thus, the only relief appellant seeks, an adjudication that he owns the property, cannot be granted.
Appellant's reliance on section 1310, subdivision (a), is of limited value. That provision states that, subject to specified exceptions, an appeal under section 1300 "stays the operation and effect of the judgment or order." Appellant disregards one of those exceptions—subdivision (b) of section 1310, which provides: "Notwithstanding that an appeal is taken from the judgment or order, for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary, or may appoint a . . . conservator of the person or estate . . . to exercise the powers, from time to time, as if no appeal were pending. All acts of the fiduciary pursuant to the directions of the court made under this subdivision are valid, irrespective of the result of the appeal. An appeal of the directions made by the court under this subdivision shall not stay these directions." (Italics added.)
Section 1300 provides: "In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶] (a) Directing, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property. [¶] (b) Settling an account of a fiduciary. [¶] (c) Authorizing, instructing, or directing a fiduciary, or approving or confirming the acts of a fiduciary. [¶] (d) Directing or allowing payment of a debt, claim, or cost. [¶] (e) Fixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney. [¶] (f) Fixing, directing, authorizing, or allowing payment of the compensation or expenses of a fiduciary. [¶] (g) Surcharging, removing, or discharging a fiduciary. [¶] (h) Transferring the property of the estate to a fiduciary in another jurisdiction. [¶] (i) Allowing or denying a petition of the fiduciary to resign. [¶] (j) Discharging a surety on the bond of a fiduciary. [¶] (k) Adjudicating the merits of a claim made under Part 19 (commencing with [s]ection 850) of Division 2."
Even if we overlook the mootness of this appeal or find the stay applicable, we find it to be without merit. Appellant asserts a violation of his due process rights caused by multiple evidentiary errors—in particular, the admission of declarations in lieu of direct testimony and the trial court's failure to regard Carl's "objection" and the "land contract" as admissible party admissions. These assertions, however, are unavailing. First, appellant cites nothing in the record that indicates that he objected to the admission of declarations; indeed, he submitted his own declaration during the proceedings. He also offers nothing in the record to support his assertion that the court "exclude[d] oral testimony entirely," nor does he even mention any effort (rejected or otherwise) to present oral testimony beyond that of his handwriting expert, who did testify. Moreover, appellant's contention suffers from the same significant defect as his statement of facts: in it he presumes, contrary to the lower court's findings, that the proffered "objection" and "land contract" were valid; and he baldly asserts unsubstantiated facts—for example, that after being under Perkins's "control," Carl became "a virtual vegetable" who was "obviously on drugs" and could make only "guttural sounds." Even his numerous citations of law are made without showing how they apply to the challenged proceeding. In light of the multiple assertions of facts and law without support in the record, appellant has waived any evidentiary errors in the section 850 order.
(Cf. Gold v. Superior Court (1970) 3 Cal.3d 275, 281 [predecessor statute to section 1310, subd. (b), requires extraordinary circumstances showing a risk of imminent injury or loss].) We note that this appeal has been given calendar preference, thereby promoting "expeditious resolution" of the parties' dispute. (Cf. East Bay Regional Park Dist. v. Griffin (2016) 2 Cal.App.5th 734, 744.) In any event, we have considered appellant's contentions on appeal notwithstanding the mootness of the section 850 order.
The same result must attend appellant's claims based on the expiration of the statute of limitations, equitable and promissory estoppel, and laches. He complains that these doctrines require "proof of facts," but he acknowledges that he presented none; according to him, he "never had an opportunity to present any facts." The premise of much of his argument is that he was entitled to rely on the "land contract," which was found to be invalid. Appellant argues, for example, that the four-year statute of limitations has expired because Carl "acquiesced in the terms of the land contract" and "personally took no action." He goes so far as to invoke "[l]ogic" to assert that the court "avoided" the issue of the statute of limitations in accordance with "its personal desire to take the home from Robert." He himself avoids mentioning Carl's declaration, in which Carl stated that he was unaware of the "land contract" until it was presented (in redacted form) in the 2017 unlawful detainer proceedings.
The order at issue did not determine the rights of parties in a fraud or breach of contract action; it is therefore irrelevant whether Carl discovered the purported contract within three or four years of its alleged completion. (Code Civ. Proc. § 337 (fraud), § 338 (contract).) The court simply confirmed, consistently with the prior unlawful detainer judgment and its prior findings, that the Aptos property was an asset of the conservatorship estate. In so ruling, the court rejected appellant's 10 affirmative defenses and his attempts to enforce the "land contract" on equitable grounds. Critical to its decision was the finding that the proffered "land contract" was invalid, primarily because it lacked adequate consideration and because Carl denied knowingly signing it and was not even aware of its terms until presented at the unlawful detainer trial. In addition to the invalidity of that document, the court found insufficient evidence to support appellant's allegations of estoppel, unclean hands, laches, unconscionability, and ratification by appellant of his own acts.
It was appellant who asserted breach of contract, and that was in the context of his third affirmative defense to Wallace's petition.
In his "Response and Counter Petition" appellant alleged that "Counter Petitioner, by his acts, conduct and/or omissions, has ratified the acts, conduct and omissions, if any, of the Respondent; therefore Petitioner is barred from seeking any relief from the Respondent."
Appellant fails to offer any cogent argument that there was no substantial evidence to support these findings; instead, he continues to rely on facts that not only are accompanied by no citation to the record, but are completely unsupported by the record. In his opening brief he sets forth the applicable standards of review, but thereafter he never applies those standards to the factual findings and legal determinations of the lower court.
In addition to the demeaning description of Carl's mental status, appellant's briefs are replete with numerous other instances of unsupported factual assertions. He claims, for example, that he and Olinyk spent "all their savings," "hundreds of thousands of dollars in time and material on the home," which "has almost doubled in value." As for the lack of consideration in the "land contract," he disclaims any obligation to present evidence of consideration, instead asserting that all that mattered was the value placed on it by the contracting parties—which was, he says, $1 million, though the purchase price in the contract was far less.
It is not enough simply to declare a fact and assume the appellate court will accept that representation; on the contrary, in reviewing the sufficiency of the evidence, the appellate court "starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant's affirmative burden to demonstrate otherwise. [Citations.]" (Garlock Sealing Techs., LLC v. NAK Sealing Techs. Corp. (2007) 148 Cal.App.4th 937, 951.) That burden entails "presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited." (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) This case warrants such forfeiture. Even if we overlook the gratuitous attacks on the integrity of the court, the attorneys, the conservators, and his own brother, the complete lack of reasoned analysis based on facts in the record justifies rejecting all of appellant's claims of error. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu) [appellate court not required to search the record for error; by asserting insufficiency of evidence without citing the record, argument may be deemed waived].) The superior court properly examined the terms of appellant's proffered "land contract" and found its payment terms to be so one-sided that it could not be deemed a valid agreement. Carl himself had declared that he would never have signed this document. With those findings the conservator successfully refuted appellant's claims of entitlement to the Aptos property. No error appears on the record before us. 2. The Instructions Regarding Auction Proceeds
It makes no difference that appellant is representing himself. A pro per litigant is held to the same standards as attorneys, including standards pertaining to the rules of procedure. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.) " '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' " (Nwosu, supra, 122 Cal.App.4th at p. 1247.) But even if self-represented litigants were accorded extraordinary forbearance on appeal, we note that appellant was an attorney for years before his license to practice law in Michigan was revoked for misconduct. His unabashed failure to undertake a reasoned analysis with apposite authority and evidentiary support therefore warrants no special lenience or indulgence from this court.
Appellant next challenges the January 10, 2018 order granting Wallace's petition for instructions for the disposition of the proceeds of the September 30, 2017 auction of the personal property in the home. Again appellant states facts without any support in the record: He accuses Wallace and one of the conservatorship attorneys of locking him out of the home and conversion of the auction proceeds, all with the intent of punishing him and Olinyk. The auction itself, he claims, "was an attempt to cover prior acts of theft and the objects of a conspiracy." These unsupported allegations will be disregarded. The petition informed the court that following the unlawful detainer judgment, an eviction notice was posted and a lockout scheduled for August 10, 2017. After the lockout, the sheriff posted notice that the defendants had 15 days to remove their personal property, and someone was hired to let appellant inside during that period. Appellant and Olinyk did not avail themselves of that opportunity, and the auction took place as scheduled on September 30, 2017.
Appellant does not contest these facts by pointing to evidence. Nor does he refute facts presented in the petition, many of which were obtained from the witnesses to the auction. The auctioneer reported that she had had to call the police because of appellant's interference. The road was blocked, the driveway was barricaded, directional signs were kicked over, and prospective buyers were threatened with a lawsuit if they bought anything.
Nevertheless, after the commission, an auction fee, and advertising, the auction generated $21,488.60 for the estate. The court permitted $8,666.84 of that amount to be used for storage costs, $6,540 for attorney fees and costs, and $6,651.10 for the conservator's fees and costs. Appellant fails to offer any factual basis for questioning these instructions. We therefore presume the superior court properly credited the facts related in the petition and its accompanying exhibits. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [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"]; see also Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [doctrine of implied findings allows appellate court to infer that the trial court made all factual findings necessary to support its order].) Appellant also offers nothing to support his assertion that not only was he entitled to all the auction proceeds but the full amount should have been doubled "in accordance with the elder abuse statutes."
Appellant further argues that Civil Code section 1988, subdivision (c), was violated because the auction proceeds were not paid into the county treasury. Even assuming appellant has standing to make this argument on behalf of the county, we find it to be without merit. The cited subdivision provides, "After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale which is not claimed by the former tenant or an owner other than such tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale." The court's order was not inconsistent with this provision; it expressly instructed, "If the auction proceeds are exhausted after satisfying some or all of the expenses [that the court had authorized to be paid], the conservator is not required to pay anything to the treasury of Santa Cruz [C]ounty, pursuant to [Civil Code section] 1988." Indeed, as the court anticipated, the deductions noted above exceeded the auction proceeds, so there was nothing left to be conveyed to the county treasury and hence no violation of Civil Code section 1988, subdivision (c).
The order also confirmed that the $16,711.80 obligation imposed on appellant in the unlawful detainer judgment was "not waived in any way."
Appellant's further challenge to the allowance for storage and professional costs does not help him. He cites no authority suggesting that these expenses were unauthorized or awarded in excess of the superior court's discretion. Nor has he explained how his due process rights were violated by the procedure followed by the parties and the court. No error appears in the record of these proceedings. 3. Cumulative Error
Appellant finally contends that the "multiple errors" he identified amounted to cumulative error, requiring reversal. He poses the question, "how many errors make a 'series of errors.' " He insists there are "substantially more" than five "fundamental" errors, which showed a "pattern of abuse to deny Appellant his home," to deny him "the right to present his case," to "deny a timely appeal of his rights," and "to intentionally violate a stay"—in short, a "pattern of abuse designed to take the money and run." Added to this asserted abuse were the "acts of judicial misconduct" and bias against him. None of these claims is accompanied by a citation to the record, and none appears to be supported by anything in the limited record before us. As we have found no error underlying either of the challenged orders, there is nothing to cumulate and therefore no basis for reversal. (Cf. People v. Johnson (2016) 62 Cal.4th 600, 654 [finding "nothing to cumulate" where all claims of error are rejected].)
As noted earlier, the proceedings culminating in the challenged orders were not reported. Among the petitions for writ review appellant submitted to this court was a request for an order compelling the lower court to issue a settled statement of the record. That request was denied. --------
Disposition
The February 9, 2018 order confirming the Aptos property to be an asset of Carl's conservatorship estate and the January 10, 2018 "Order for Instructions Regarding Auction Proceeds" are affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
GROVER, J. /s/_________
DANNER, J.