Opinion
E079649
06-10-2024
Conservatorship of the Estate of THOMAS S. TEDESCO. v. GLORIA TEDESCO et al., Objectors and Appellants. DAVID M. WILSON, as Conservator, etc., Petitioner and Respondent,
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D. Marshall; Manning & Kass, Ellrod, Ramirez, Trester, Daniel Herbert and Kirsten Brown for Objector and Appellant Gloria Tedesco. Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Objector and Appellant Stephen Carpenter. Debra Wear, in pro. per.; Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Objector and Appellant Debra Wear. Freeman, Freeman & Smiley, Geraldine A. Wyle, Jeryll S. Cohen and Thomas C. Aikin, for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No INP 1400272. John G. Evans, Judge. Affirmed.
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D. Marshall; Manning & Kass, Ellrod, Ramirez, Trester, Daniel Herbert and Kirsten Brown for Objector and Appellant Gloria Tedesco.
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Objector and Appellant Stephen Carpenter.
Debra Wear, in pro. per.; Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Objector and Appellant Debra Wear.
Freeman, Freeman & Smiley, Geraldine A. Wyle, Jeryll S. Cohen and Thomas C. Aikin, for Petitioner and Respondent.
OPINION
McKINSTER, J.
This case continues the series of disagreements over control of the multimillion-dollar estate of nonagenarian Thomas S. Tedesco. In 2015, a conservatorship of Thomas's estate was created, and Thomas requested the appointment of respondent David M. Wilson (Wilson), an independent professional fiduciary, as conservator of the estate. Thomas's second wife, Gloria Tedesco (Gloria) was present at the hearing and stipulated on the record, through counsel, to Wilson's appointment. Subsequently, Gloria, her daughter Debra Wear (aka Debbie Basara Wear, herein Wear), and friend Stephen Carpenter (Carpenter) have repeatedly challenged the need for a conservatorship, the appointment of Wilson as conservator, and Wilson's actions as conservator. In this appeal, they contest the order approving Wilson's second accounting, covering a period from June 1, 2016, through April 15, 2018.
Thomas was born on April 27, 1926; on December 31, 2005, his estate was valued at $40,474,997. (White v. Wear (2022) 76 Cal.App.5th 24, 27, fns. 1, 2 (Wear).) We refer to some of the parties by their first names to avoid confusion. We mean no disrespect in doing so. (Estate of O'Connor (2018) 26 Cal.App.5th 871, 875, fn. 2.)
On May 26, 2023, Wilson filed a request to dismiss the appeal on the grounds (1) Wear and Carpenter lack standing to represent Thomas's interests, (2) Gloria is represented by counsel who were previously disqualified from representing her based on a conflict of interests, and (3) Gloria waived any objections to the second accounting and/or is estopped from challenging it based on the doctrine of res judicata. We conclude Wear and Carpenter have standing to object to the second accounting, Gloria is no longer represented by counsel who were previously disqualified from representing her, and the doctrine of res judicata applies. Although we decline to dismiss the appeal, we agree that it is appropriate to strike portions of the record that are not related to the second accounting. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On August 18, 2023, we reserved ruling for consideration with this appeal on Wilson's request for judicial notice filed July 28, 2023. We have reviewed the request and appellants' opposition. The request is granted. We take judicial notice of the records and our prior opinions in: (1) Conservatorship of the Estate of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.], mod. Oct. 7, 2019 (Estate of Tedesco); (2) Tedesco v. White (Sept. 19, 2019, E069438) [nonpub. opn.] (Tedesco v. White I); (3) Tedesco v. Wells Fargo Bank,N.A., et al. (Oct. 16, 2020, E070407) [nonpub. opn.] (Tedesco v. Wells Fargo); (4) Wear, supra, 76 Cal.App.5th 24; (5) White v. Davis (2023) 87 Cal.App.5th 270 (Davis); and (6) Conservatorship of Tedesco (2023) 91 Cal.App.5th 285 (Conservatorship of Tedesco); along with the prior opinions of the Division Three of this District in: (7) Tedesco v. White (June 15, 2022, G059883) [nonpub. opn.] (Tedesco v. White II); and (8) Tedesco v. White (2023) 96 Cal.App.5th 1090 (White). (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) "It is well accepted that when courts take judicial notice of the existence of court documents, the legal effect of the results reached in orders and judgments may be established." (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 185.)
A. Background History of the Parties and Initiation of Conservatorship.
A more comprehensive history of the parties and their legal actions is provided in Conservatorship of Tedesco, supra, 91 Cal.App.5th at pages 290-301. For purposes of this appeal, we summarize the history as follows:
Thomas, the conservatee, is a wealthy nonagenarian. He and his late wife Wanda Tedesco (Wanda) retained attorney Burton A. Mitchell (Mitchell) and created an estate plan to benefit their three daughters, Laura K. White, Sandra Kay, and Julie Bas, and grandchildren. (Estate of Tedesco, supra, E070316.) Part of the estate plan included the creation of the Thomas S. Tedesco Living Trust (the living trust) and W. Mae, LLC, a California limited liability company (W. Mae). (Estate of Tedesco, supra, E070316.)
In 2007, Thomas married Gloria (nee Basara) who had two daughters from a prior relationship, Wear and Wendy Basara. Since both Thomas and Gloria entered the marriage with multimillion-dollar estates, they executed prenuptial and postnuptial agreements and, following extensive discussions, Thomas's estate plan granted Gloria a life estate (only) in his residence should she survive him. (Davis, supra, 87 Cal.App.5th at p. 277.) During the first six years of Thomas and Gloria's marriage, no issues arose regarding Thomas's estate plan, which favored his biological heirs. However, by fall 2013, after undergoing multiple surgeries, Thomas had become intellectually impaired (he stopped paying bills and taxes, resulting in significant penalties) and susceptible to being unduly influenced (he ended his decades-long relationship with Mitchell, and expressed a desire to leave 75 percent of his estate to Gloria and 25 percent to charity). (Conservatorship of Tedesco, supra, 91 Cal.App.5th at pp. 292-293.) On September 9, 2013, Dr. Ivor J. Nazareth, a neurologist, evaluated Thomas and opined that he is unable to make consistent and reliable, rational decisions regarding his health or financial issues. (Id. at p. 293.) As Thomas's health declined, Gloria prevented his daughters from seeing him and listened in on their phone conversations. (Id. at p. 292.)
Concerned about Thomas's health and Gloria's actions, in 2014, White petitioned for the appointment of a probate conservator of Thomas's person and estate based on his incapacity to act on his own behalf and White's concern that Gloria was unduly influencing him. (Estate of Tedesco, supra, E070316.) On October 17, 2014, the probate court (Judge James A. Cox) appointed a guardian ad litem (GAL) for Thomas. In April 2015, Dr. David W. Trader performed a comprehensive geriatric psychiatric examination of Thomas and concluded he had minimal understanding and appreciation of his medical conditions, his estate plan, his properties, and the receipt of rent. (Estate of Tedesco, supra, E070316.) Two months later, the court (Judge Cox) appointed a temporary conservator of Thomas's estate after finding Thomas was mentally deficient and "'"very susceptible to being unduly influenced."'" (Conservatorship of Tedesco, supra, 91 Cal.App.5th at p. 294, fn. omitted.) Subsequently, Thomas filed a competing petition for appointment of Wilson as temporary conservator of the estate, and the parties stipulated and agreed to Wilson's appointment as permanent conservator; likewise, independent counsel was appointed. (Id. at p. 295.)
During the same time, Wear was facilitating Thomas's communications with attorney Russell Davis (Davis) (Wear worked as his paralegal) who repeatedly requested to be Thomas's appointed counsel, and Gloria and Wear continued to interfere with the relationship between Thomas and his court-appointed attorneys. (Conservatorship of Tedesco, supra, 91 Cal.App.5th at pp. 293-296.) Also, Carpenter petitioned for an order broadening Thomas's power, while Gloria and Wear initiated civil actions in Riverside and Orange Counties (not authorized by Wilson) with the end goal of Thomas regaining control over his estate and all financial decision-making. They sought the appointment of a GAL to act on behalf of Thomas, engaged the services of Herzog, Yuhas, Ehrlich & Ardell, petitioned for termination-or vacatur-of the conservatorship, accused Thomas's daughters and Wilson of breach of their fiduciary duties, fraud, and/or elder abuse, and moved to disqualify judges who ruled against them. (Conservatorship of Tedesco, supra, 91 Cal.App.5th at pp. 296-301.) In response to appellants' initial actions, Wilson petitioned the probate court for, inter alia, instructions/order affirming his power to initiate and maintain litigation on Thomas's behalf and barring any counsel not appointed by the probate court from representing Thomas or initiating and pursuing litigation on his behalf. Wilson's petition was granted, and we affirmed the decision on September 19, 2019. We observed that "the 'driving force' behind the legal actions initiated outside the conservatorship 'appears to be Gloria, her daughters, and nonappointed counsel (who lacked independence because they were assisted by Gloria's daughter, [Wear], paralegal to [Davis]). Their motivation therefore is suspect.'" (Davis, supra, 87 Cal.App.5th at p. 281.)
"In June 2016, Thomas requested that Davis be appointed as independent counsel, but the probate court appointed Jeremy J. Ofseyer on August 4, 2016. [Citation.] By September 22, 2016, Ofseyer moved to withdraw as court-appointed counsel because Gloria objected to his representation, claiming a conflict of interest based on his meeting with her many years prior. [Citation.] A second request to have Davis appointed as Thomas's counsel was made; however, the court appointed Julia Burt on December 9, 2016. [Citation.] Since Burt was thwarted from every effort to communicate with Thomas, and Gloria accused her of having a conflict of interest, Burt also moved to withdraw, and Kevin McKenzie was appointed . . . ." (Conservatorship of Tedesco, supra, 91 Cal.App.5th at p. 295, fn. 12.) The court "authorized [McKenzie] to delegate some of the work to some of the attorneys in his office." McKenzie remained Thomas's counsel until October 9, 2020, when the court granted his motion to withdraw. (Ibid.)
Carpenter is described as "'a retired bank executive who "has known [Thomas] for about 13 years," is a "good friend," and "is concerned about the well-being of [Thomas]." However, according to Wilson, Carpenter "came into [Thomas's] life after [meeting] his wife Gloria." Shortly after Wilson was appointed conservator, "Carpenter and . . . [Wear], had [Thomas] call [Wilson] and request an immediate meeting[; however,] it was really . . . Carpenter and . . . [Wear] requesting the meeting, and they wanted information relating to the status of the case."' [Citation.]" (Conservatorship of Tedesco, supra, 91 Cal.App.5th at p. 296, fn. 13.)
"The law firm of Ian Herzog (Herzog) and Evan D. Marshall (Marshall). 'On June 2, 2017, Thomas signed an attorney-client agreement wherein he agreed that of the assets reclaimed, Herzog's firm would recover their costs first, then their legal fees at the following rates: 33½ percent of any recovery made before filing suit; 40 percent of any recovery made after filing suit; and 50 percent in the event of an appeal.' [Citation.]" (Conservatorship of Tedesco, supra, 91 Cal.App.5th at p. 296, fn. 14.) Herzog, Marshall and Davis are sometimes referred to as nonappointed counsel because none have been appointed by the probate court to represent Thomas.
To summarize, appellants and nonappointed counsel have been unsuccessful in each of their actions to undermine Wilson and the conservatorship. They now challenge Wilson's second accounting.
B. The Conservatorship's Accountings.
1. The First Accounting.
On June 28, 2016, Wilson filed the first account and report and petitioned for an order (1) settling and approving the first account, (2) allowing conservator's fees and advanced costs, and (3) allowing attorney's fees and advanced costs (the "first accounting"). The first accounting covered the period from August 10, 2015, through May 31, 2016. It noted that "most of the Conservatee's assets are not held in the Conservatorship estate and his normal living expenses for health, maintenance and support are provided by income and funds held outside of this conservatorship estate . . . in the Conservatee's Trusts . . . [with an] estimated value of . . . in the mid eight figures." The report includes the "investigation and resolution of various claims related to the Conservatee's estate" and details regarding the Conservator's conclusions. It identified Thomas's daughters as trustees of the living trust that receives funds from another trust (the Wanda Tedesco Trust). These funds are then distributed to Thomas as his needs require and pursuant to the terms of the living trust; however, many of Thomas's expenses are paid by the living trust. The two trusts hold the bulk of Thomas's assets. The first accounting was approved on December 21, 2016.
The order approving the first accounting was not appealed. The first accounting resolved the claims improperly filed by nonappointed counsel on behalf of Thomas as separate civil actions. According to the documents attached to the first accounting, Wilson and counsel (law firms with expertise in trust and estate matters and legal malpractice) investigated the claims asserted in the civil actions brought in Orange and Riverside Counties. As a result of those investigations, Wilson decided not to pursue any claims. (Estate of Tedesco, supra, E070316.)
2. The Second Accounting.
On November 29, 2017, Wilson filed the second account and report, and petitioned for an order (1) settling and approving the second account, (2) allowing conservator's fees and advanced costs, (3) allowing attorney's fees and advanced costs, and (4) confirming denial of reimbursement requests and approving process for reimbursement (the "second accounting"). The second accounting, which initially covered the period from June 1, 2016, through August 31, 2017, confirmed that "[m]ost of the Conservatee's assets are not held in the Conservatorship Estate and his normal living expenses for health, maintenance, and support are provided by income and funds held outside of this Conservatorship Estate . . . in the Conservatee's Trusts."
a. The initial objections/first supplement.
On February 4, 2018, Wilson filed a first supplement to the second accounting to address probate notes requesting further information on reimbursement requests. Subsequently, Carpenter, Gloria, and Thomas (via nonappointed counsel) filed objections on the grounds "that on or about March 19, 2018 a Petition for Removal of Conservator was filed herein, and review and approval of the Accounting or any Conservator fees requested therein is premature pending determination of the Petition for Removal and the Petition for Termination of Conservatorship filed concurrently herewith." Gloria joined in Thomas's objections and further raised issues on reimbursements and the process for which Wilson determined reimbursements. The probate court set a trial on the accounting and objections for Augst 7, 8, and 10, 2018, and ordered that any supplement be filed by May 11, and further objections filed by June 8, 2018.
b. The second supplement.
On May 11, 2018, the second supplement was filed; it extended the accounting period through April 15, 2018, and responded to the probate court's setting of a trial date and filing deadlines. The second supplement confirmed receipts by the conservatorship estate from the living trust in the amount of $590,100.10 from June 1, 2016 through August 31, 2017, and an additional $434,657.20 from September 1, 2017 through April 15, 2018. It detailed how Wilson disbursed these funds for Thomas's and Gloria's ordinary needs, including medical insurance premiums, taxes, home care, credit card bills, country clubs dues, utilities, cleaning, landscaping, maintenance, and HOA dues for the home. It requested approval of Wilson's fees in the amount of $70,270, and attorney's fees in the amount of $508,850. Prior approved fees (conservator and attorneys) and costs were paid from the "Conservatorship Estate, the Conservatee's Trust or funds furnished by the Conservatee's Trusts for services rendered." A large majority of these fees, and Wilson's time, were incurred following the appearance of nonappointed counsel and the litigation they initiated to terminate or vacate the conservatorship.
c. Further objections.
No further objections were filed by any party in response to the second supplement, or otherwise, prior to the probate court's deadline. However, on July 18, 2018, Thomas, by and through Carpenter (via nonappointed counsel), filed objections that primarily challenged Wilson's actions and asked for a stay pending a final determination of the civil actions filed against Wilson and Wells Fargo Bank. Otherwise, Carpenter objected to "the compensation claimed by [Wilson] and his counsel as their actions failed to benefit the estate," are contrary to Thomas's wishes, and are in bad faith. Carpenter noted that Wilson denied a $3,875 reimbursement to Davis-because the probate court refused to name Davis as Thomas's independent counsel-despite Davis's assertion the money was paid to Dr. Anthony Bassanelli to evaluate Thomas's mental capacity. On August 10, 2018, Thomas, via Carpenter, submitted a brief in response to the second accounting.
d. The first hearing on the second accounting.
An evidentiary hearing on the second accounting was held on August 10, 2018; Thomas's court-appointed counsel (McKenzie) appeared. Initially, the probate court (Judge Thomas H. Cahraman) took the matter under submission, but then vacated the order as to the limited issue of requested attorney's fees; the court found the invoices were not privileged and had not previously been made available to all parties. Thus, the court allowed further objections on that issue alone and ordered them filed no later than September 18, 2018, with any response served by September 28, 2018.
Appellants did not designate the August 10, 2018, hearing transcript to be included in the record on appeal. When appellant proceeds without a reporter's transcript of the proceedings, "we presume the trial court's findings of fact . . . are supported by substantial evidence," and "[t]hey are binding on us, unless reversible error appears in the record." (People v. Roscoe (2008) 169 Cal.App.4th 829, 839.)
e. Stay of proceedings and further objections.
On August 17, 2018, the probate court (Judge James Latting) granted motions to stay the conservatorship proceedings, with the exception of trial on the second accounting. The court noted that Thomas's petition to terminate the conservatorship (filed by nonappointed counsel and later joined in by Thomas's court-appointed attorney, McKenzie) was withdrawn on July 23, 2018, and confirmed by the parties on August 3, 2018. The hearing on the petition to remove Wilson and the motion to vacate the order establishing the conservatorship, inter alia, was continued to November 9, 2018. On September 18, 2018, Carpenter (via nonappointed counsel) filed further objections which Thomas purportedly joined in. The matter was stayed pending resolution of the issues on appeal, including whether nonappointed counsel may represent Thomas. (Estate of Tedesco, supra, E070316; White I, supra, E069438.)
On January 23, 2020, consistent with the opinions in Estate of Tedesco, supra, E070316 and White I, supra, E069438, the probate court (Judge John G. Evans) struck the objections (and all other pleadings) filed by nonappointed counsel on behalf of Thomas and Carpenter. Gloria did not appear at this hearing.
f. Third supplement and further objections.
On February 18, 2020, Wilson filed a third supplement to address the untimeliness of recent objections as well as provide an update on issues decided on appeal. The third supplement also responded to probate notes, which requested more information on the reasonableness of the attorney's fees requested, and included a table of the 16 separate pleadings filed by nonappointed counsel that were successfully opposed by Wilson and had either been denied, dismissed, or withdrawn during the period of the second accounting. Less than a week later, (more than 18 months after the deadline for filing objections) Wear objected to the second accounting and requested an evidentiary hearing, and on July 7, 2020 (more than two years after the deadline to file objections to the second accounting) Carpenter filed further objections.
Simultaneously, Carpenter petitioned to remove Wilson as conservator, appoint a successor conservator, and proceed with the Wells Fargo Bank litigation. The court (Judge Evans) denied Carpenter's petition for lack of standing.
g. Fourth supplement and hearing.
On July 8, 2020, Wilson filed a fourth supplement in response to the last-minute unauthorized filings by nonappointed counsel and Wear. At the August 18, 2020, hearing on the second accounting, the probate court (Judge Evans) struck Carpenter's July 8, 2020, amended objections, and denied Wear's February 25, 2020, objections on the grounds they are not timely and they "appear to be nothing more than an attempt by non-appointed counsel to accomplish indirectly what non-appointed counsel cannot accomplish directly." The court found the sole remaining issues to be determined include the reasonable value of Wilson's fee, the fees of Wilson's attorneys, Holland & Knight, LLP, Gresham Savage's fees, the amount of the bond, and "miscellaneous issues addressed in paragraphs 7 and 8 of the proposed order." It ordered the billing statements, previously lodged and provided to the parties, be filed with the court by September 4, 2020, but stated it would not consider any further objections to the petition. Gloria did not appear at the hearing.
h. Fifth supplement and further objections
On August 21, 2020, Wilson filed the fifth supplement, which contained the attorney's invoices for the accounting period of June 1, 2016, through April 15, 2018. Hearing on the second accounting was taken under submission, and the matter was continued pending resolution of the appeal. On or about January 15, 2021, Gloria (via nonappointed counsel) filed amended objections to the second accounting on the grounds (1) Thomas was not currently represented by court-appointed counsel due to McKenzie's withdrawal; (2) there was no determination of (a) the validity of the conservatorship, (b) Thomas's request to dismiss the conservatorship, and (c) Wilson's breach of fiduciary duties and fraud; (3) Wilson has an unwaivable conflict of interest; and (4) there was no valid approval of the first accounting. In May 2021, Thomas (in pro. per.) filed objections to the second accounting and requested independent counsel and an evidentiary hearing. Thomas also adopted all objections filed by Gloria, Wear, and Carpenter.
In response to Thomas's objections, Wilson noted the second accounting had been pending for almost three and a half years, and during most of that time Thomas was represented by independent counsel who "had ample opportunity to object." Wilson added Thomas lacks the capacity to object on his own behalf, the objections duplicate prior objections, and they should be stricken as untimely. Wilson pointed out that on August 18, 2020, the probate court (Judge Evans) stated the sole remaining issues to be determined are the reasonable value of the conservator's fees, the attorney's fees, the bond, and the miscellaneous issues addressed in paragraphs 7 and 8 of the proposed order.
On or about June 16, 2021, Wear (in pro. per.) replied to Wilson's response asking the probate court to decide the first amended petition to vacate the order establishing the conservatorship prior to ruling on the accounting. She claimed Wilson misled the court in multiple areas and identified the claims previously raised by herself, Thomas, Gloria, and Carpenter. Otherwise, she argued Wilson's request for "two million dollars . . . cannot reasonably be evaluated under any circumstance without a court review of the Trust assets and income." She challenged Wilson's assessment of the Trust's worth, and the validity of the legal fees incurred, accusing Wilson of concealing information and violating "every ethical standard." On November 10, 2021, Gloria (in pro. per.) filed objections to the second accounting, adopting all objections previously filed on Thomas's behalf by Wear and Carpenter. She further requested the court stay any hearing on Wilson's accounting pending resolution of a petition for review before the Supreme Court of California regarding the alleged bias and improper conduct of the "Court of Appeal in denying [Thomas] his constitutional rights to due process."
Previously, in March 2021, Carpenter and Gloria (represented by nonappointed counsel) filed a first amended verified petition to vacate the order establishing the conservatorship. The probate court (Judge Evans) denied the petition on the grounds it was time barred, the moving parties lack standing, the doctrines of collateral estoppel and res judicata apply, and nonappointed counsel may not represent Thomas directly or indirectly (by representing Carpenter and Gloria).
i. Ruling on the second accounting
On June 21, 2022, after the stay had been lifted, the probate court (Judge Evans) reconfirmed that it had taken the second accounting under submission on September 22, 2020; it then approved the second accounting. The order reflects the July 9, 2020, hearing date on the second accounting. It interlineated its determination of Wilson's fees ($62,610; a reduction of $7,660 of the amount requested) and attorney's fees ($462,665.00; a reduction of $46,185 of the amount requested), and found that "[a]ll services for which compensation are sought are found to be rendered in good faith, to have benefited [Thomas] and his Estate, and were required taking into account the best interests of [Thomas]."
Appellants have not provided a reporter's transcript. (People v. Roscoe, supra, 169 Cal.App.4th at p. 839.)
Appellants (initially represented by nonappointed counsel) appeal the June 21, 2022, order approving the second accounting.
While nonappointed counsel represented appellants in their opening brief, Wear substituted herself in propria persona and submitted a reply brief, and Gloria substituted Manning & Kass, Ellrod, Ramirez, Trester LLP to represent her and submit a reply brief. Carpenter neither filed a reply brief nor a substitution of counsel.
II. DISCUSSION
A. Preliminary Matters.
1. Motion to Dismiss.
According to the notice of appeal, appellants seek to challenge the "Order on Second Account Current and Report of Successor Conservator filed herein on June 21, 2022, and from every order subsidiary thereto." Wilson moves to dismiss the appeal "as frivolous re-argument of issues already decided," and because the opening brief was filed primarily by parties already "adjudged to lack standing." He further moves to strike portions of appellants' appendix "on the grounds these pleadings are not properly part of the record on appeal of this matter." Although we deny the request to dismiss the appeal based on standing, we agree that appellants are barred from relitigating issues already decided.
Standing to appeal is a jurisdictional requirement. (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 888, fn. 7.) "To have appellate standing, one must (1) be a party and (2) be aggrieved." (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 13; see Code Civ. Proce. § 902.) An aggrieved person is "one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (In re K.C. (2011) 52 Cal.4th 231, 236.) Arguably Wear and Carpenter have not been "injuriously affected" by the second accounting because they are not heirs to Thomas's estate, Wilson owes them no fiduciary duty, Wilson's actions do not affect their legal rights (based on the terms of Thomas's estate plan), and neither of them pay for any of Thomas's needs such that they would be financially disadvantaged by the conservatorship paying for them. Nonetheless, Probate Code section 2622 broadly confers standing on "any relative or friend of the . . . conservatee, or . . . other interested person" to file written objections to the conservator's accounting, albeit objectors must state "the items of the account to which objection is made and the basis for the objection." (Prob. Code, § 2622.) A statutory right to object would be meaningless if there was no avenue to review the probate court's ruling.
Nothing in this opinion should be construed as expanding Wear or Carpenter's standing beyond that provided in Probate Code section 2622.
Nonetheless, since our review is limited to the order approving the second accounting, to the extent appellants' appendix (5,724 pages) includes portions of the probate court's record that are not related to the second accounting, we grant Wilson's motion to strike. (Cal. Rules of Court, rules 8.50 & 8.204.) Accordingly, we strike the following from appellants' appendix: pages 2248-4153 (petition for order removing Wilson as conservator, suspending powers of Wilson pending removal, appointing a successor conservator, and withdrawing conservator's power to intervene and dismiss civil action; exhibits to petition; and ex parte application to suspend Wilson's powers and/or prohibit Wilson from interfering with pending litigation); pages 4341-4898 (McKenzie's response to petition to remove him; Marshall's declaration in support of McKenzie's response; and exhibits to Marshall's declaration); and pages 5011-5066 (first amended verified petition to vacate order establishing conservatorship).
Further rule references are to the California Rules of Court.
2. Res Judicata.
"'Generally, "'[r]es judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them."' [Citation.] Res judicata bars a subsequent claim when '"(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding." [Citation.] Upon satisfaction of these conditions, claim preclusion bars "not only . . . issues that were actually litigated but also issues that could have been litigated."' [Citation.]
"'The doctrine of collateral estoppel or issue preclusion is a secondary form of res judicata. [Citation.] It prevents a party who had a full and fair opportunity to litigate a particular issue in a prior proceeding from relitigating it in a subsequent proceeding. [Citation.] "A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.'" [Citation.]
"Both res judicata and collateral estoppel are based on the principle that a litigant is only entitled to one bite at the apple. '"The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.'"' [Citation.]" (Colombo v. Kinkle, Rodiger & Spriggs (2019) 35 Cal.App.5th 407, 416 (Colombo).)
3. Standard of Review.
The probate court decides whether or not to ratify disbursements made, or requested to be made, by a conservator. We review the court's decision for abuse of discretion. (Estate of Massaglia (1974) 38 Cal.App.3d 767, 774.)
B. The Alleged Failure to Scrutinize Wilson's Acts and Fees.
Appellants fault the probate court (Judge Evans) for failing to scrutinize whether Wilson's acts or fees were properly incurred pursuant to his fiduciary responsibilities. They claim the evidence of fraud on Thomas includes (1) Thomas's daughters' execution of the 2013 documents concerning the Third Amendment to the living trust, transfer of control to W. Mae, and use of Mitchell and his firm despite their conflict of interest; (2) Wilson's efforts to block litigation initiated outside the conservatorship; and (3) the court's failure to consider whether Wilson should have been conservator and whether he aided and abetted Thomas's daughters. Appellants argue the "validity and reasonableness of charges claimed by [Wilson] cannot be determined until the court has assessed his misconduct and grounds for removal." We reject appellants' argument on the grounds it mischaracterizes the evidence and ignores the prior rulings of the lower and appellate courts in Riverside and Orange counties.
In separate actions and appeals, the issues of Thomas's daughters' alleged fraud, the validity of the conservatorship, the appointment of Wilson as conservator, and Wilson's actions were unsuccessfully litigated. (Estate of Tedesco, supra, E070316 [Wilson retained counsel to investigate Thomas's claims, and based on counsel's analysis, he concluded any legal action against Thomas's daughters was not in Thomas's best interests. Thomas's independent counsel (Burt & Ofseyer) also did not pursue any action. Only Wilson may initiate litigation.]; White I, supra, E069438 [according to the first accounting, Wilson's decision to not pursue any claims against Thomas's daughters, his former counsel, and Wells Fargo was based on the results of retained legal counsel's investigation; retained legal counsel possessed expertise in trust and estate matters and legal malpractice]; White II, supra, G059883 [the conservatorship judgment and the orders issued therein are valid and binding]; Tedesco v. Wells Fargo, supra, E070407 [negligence claims against Wells Fargo dismissed]; and Tedesco v. White, supra, 96 Cal.App.5th at pp. 1099-1100 [Wilson acknowledged the existence of evidence questioning the validity of the 2013 and 2015 trust amendments and asked the court to require the parties to litigate the validity of these documents so he could remain neutral].) Our opinions became res judicata on these issues and conclusive in any subsequent action between the parties. (George Arakelian Farms v. Agric. Labor Rels. Bd. (1989) 49 Cal.3d 1279, 1291 ["absent unusual circumstances, the decision of the reviewing court establishes the law of the case [and is binding] in all further proceedings"]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309, disapproved on another ground in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646 ["Under the law of the case doctrine, '"the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case."'"].) Accordingly, appellants are precluded from relitigating these issues. (Colombo, supra, 35 Cal.App.5th at p. 416.)
C. Wilson's Alleged Conflict of Interest.
Appellants contend the probate court (Judge Evans) failed to assure that "a conflicted conservator was not allowed to compromise [Thomas's] claims or benefit from his breach of duty" despite being presented with evidence from Thomas's physician, forensic experts, and third party bank personnel. Appellants' accusations against Wilson are based on their self-serving version of the evidence, which has been rejected by this court and the appellate court in Orange County. (Estate of Tedesco, supra, E070316 [factual summary of Thomas's mental decline and the need for the conservatorship].) As our colleagues recently stated, "Wilson's capacity to represent [Thomas's] interests is not subject to further dispute, and as a result every argument which relies on that assertion fails as a matter of law." (Tedesco v. White, supra, 96 Cal.App.5th at p. 1098.)
Also, we are not persuaded that "[the probate court] Judge Evans[,] simply ignored the problem" despite Judge Cahraman having "obliquely touched on [it] in his August 10, 2018 remarks." Judge Evans' order was entered after we issued opinions in the appeals from appellants' various unsuccessful litigation that challenged the actions of Wilson, Thomas's daughters, and others concerning Thomas's estate and businesses. Our opinions have repeatedly rejected appellants' narrative of the alleged wrongful acts committed by Thomas's daughters, his bank, and his attorneys. Appellants are precluded from relitigating these issues. (Colombo, supra, 35 Cal.App.5th at p. 416.)
D. The Alleged Failure to Consider Thomas's Motion to Remove Wilson Prior to Approval of His Accounting.
Appellants fault the probate court for failing to consider Thomas's motion to remove Wilson prior to approving his accounting and not allowing McKenzie to associate specialist counsel (nonappointed counsel) in violation of Thomas's right to counsel. The motion to remove Wilson was drafted by nonappointed counsel; however, they were not authorized to represent Thomas, only McKenzie possessed such authority. (Estate of Tedesco, supra, E070316.) Nonetheless, McKenzie failed to remain independent "when he allowed nonappointed counsel-introduced to Thomas via Gloria or Wear-to dictate what he (McKenzie) would advocate on Thomas's behalf." (Conservatorship of Tedesco, supra, 91 Cal.App.5th at p. 308.) Moreover, appellants' support of a motion to remove Wilson is suspect given their attempts to influence Thomas concerning his estate plan (Wear, supra, 76 Cal.App.5th at pp. 31-32), along with their refusal to accept the probate court's rulings in search of more favorable ones (Estate of Tedesco, supra, E070316).
E. The Absence of Independent Counsel from October 2020 to November 2022.
Appellants contend that since Thomas was not represented by independent counsel from October 2020 to November 2022, he was unable to litigate "Wilson's fiduciary breach and the impropriety of his expenditures." Not so.
The period for the second accounting covered June 1, 2016, through April 15, 2018. During that time, Thomas was represented by Ofseyer, Burt, and McKenzie. (See fn. 3, ante.) McKenzie appeared at the evidentiary hearing on August 10, 2018. After taking the matter under submission, the probate court (Judge Cahraman) vacated the order as to the limited issue of requested attorney's fees. The court allowed further objections on this issue and ordered them filed no later than September 18, 2018. During this time, nonappointed counsel continued to assert they were representing Thomas despite the appointment of McKenzie. The matter was stayed pending resolution of several issues, including whether nonappointed counsel may represent Thomas. (Estate of Tedesco, supra, E070316; Tedesco v. White, supra, E069438.) After the stay was lifted, on July 9, 2020, the court held a hearing on the second accounting and took the matter under submission. On August 18, 2020, when Thomas was represented by McKenzie, the court continued the matter as to certain issues, including the reasonable value of the conservator's and attorney's fees; no further objections were allowed. On
September 22, 2020, when the matter was taken under submission, Thomas was represented by McKenzie. Following another stay, on June 21, 2022, the court issued its ruling on the second accounting. At all relevant times-for filing objections or attending hearings-Thomas was represented by counsel.
Notwithstanding the above, appellants further argue Thomas is "entitled to private counsel of his choice for the accounting, not just appointed counsel, and to counsel free of interference by the court or conservator." As we explained in White I, supra, E069438, Thomas's right to independent counsel is not absolute; counsel must be approved by the probate court. Independent counsel means counsel free from of interference by the court, conservator, and Thomas's wife, stepdaughter, and friends.
F. Wilson's Alleged Failure to Account for Thomas's Trust Interests and Rights.
Appellants accuse Wilson of failing to account for Thomas's right to annual income from his trusts, in excess of $1,000,000 annually from real estate and other investments. However, according to the first accounting, which was approved in December 2016 and never challenged on appeal, Wilson identified the trusts and explained their distribution of income and payment of Thomas's expenses. The second accounting confirmed that "most of the Conservatee's assets are not held in the Conservatorship estate and his normal living expenses for health, maintenance, and support are provided by income and funds held outside of this conservatorship estate . . . in the Conservatee's Trusts." The probate court accepted and approved Wilson's account of Thomas's assets. "[T]he decision under review is presumed correct on matters where the record is silent." (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1362.) To establish prejudicial error, an appellant must provide an adequate record. (Kalta v. Fleets 101, Inc. (2019) 41 Cal.App.5th 514, 516-517.)
Here, appellants have not provided an adequate record to support their bare bones claims that Thomas's trusts hold assets in excess of $15,000,000.00-this was noted by Wilson in the first accounting-and Thomas is due an annual income of "at least $10,000,000." (Rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [factual contentions must be supported by correct, page-specific citations to the record] (Duarte).) Having failed to provide appropriate citations to the material facts in the record, our review is severely constrained. Accordingly, we deem the argument waived. (Ibid.)
G. The First Accounting Was Properly Approved.
Appellants contend there was no valid approval of the first accounting because "Judge Cox's orders are likely not entitled to preclusive effect because of his disqualification." Not so. As we concluded in Conservatorship of Tedesco, supra, 91 Cal.App.5th at pages 306-307, any orders executed by Judge Cox prior to disqualification were voidable, not void, and Gloria failed to establish good cause for voiding them. Appellants are precluded from relitigating this issue. (Colombo, supra, 35 Cal.App.5th at p. 416.)
H. The Probate Court Did Not Fail to Address Validity and Due Process Issues.
Next, appellants contend this "case is a poster-child for the constitutional misuse of conservatorship proceedings." They identify seven alleged violations; however, they primarily argue that any approval of the second accounting is premature until the probate court decides the validity of the conservatorship and appointment of Wilson and the propriety of Wilson's actions, including the interference of Thomas's right to independent counsel. If nothing else, appellants remain committed to their self-serving version of the evidence, which has been repeatedly rejected. (Estate of Tedesco, supra, E070316 [factual summary of Thomas's mental decline, Gloria and Wear's undue influence, and the need for the conservatorship; the probate court did not err in instructing Wilson to discharge nonappointed counsel]; White I, supra, E069438 [Thomas has no absolute right to independent counsel of his choice the conservatorship judgment and the orders issued therein are valid and binding]; White II, supra, G059883 [appellants rely on extrinsic evidence to contradict the content of the court record].) Again, appellants are precluded from relitigating these issues. (Colombo, supra, 35 Cal.App.5th at p. 416.)
The violations include: (1) interference with Thomas's right to independent counsel, (2) denial of specialist litigation counsel, (3) denial of a timely hearing on the motion to vacate and remove Wilson, (4) unlawful enforcement of conservatorship orders, including the order purporting to appoint Wilson, (5) denial of recovery of money improperly taken from the living trust under the invalid order approving the first accounting, (6) denial of remedies for Wilson's failure to protect assets, and (7) tactical abuse aimed at obstructing Thomas's right to a hearing.
I. The Probate Court Considered the Propriety of Both the Conservator's and Attorney's Fees.
Appellants contend Judge Evans ignored Judge Cahraman's concern that the fees charged by Wilson and the conservatorship attorneys for defeating Thomas's claims against his daughters and Wells Fargo duplicated the daughters' efforts and served their interests, not Thomas's. We disagree.
After the probate court (Judge Cahraman) took the second accounting under submission, he vacated the order as to the limited issue of requested attorney's fees; the court found the invoices were not privileged and had not previously been made available to all parties. The court allowed further objections on that issue alone. Wilson filed a third supplement to the second accounting that provided more information on the reasonableness of the attorney's fees requested. In response to the last-minute unauthorized filings by nonappointed counsel and Wear, Wilson filed a fourth supplement.
At the August 18, 2020, hearing on the second accounting, the probate court (Judge Evans) found the sole remaining issues to be determined include the reasonable value of Wilson's fee, the fees of Wilson's attorneys, Holland & Knight, LLP, Gresham Savage's fees, the amount of the bond, and "miscellaneous issues addressed in paragraphs 7 and 8 of the proposed order." It ordered the billing statements, previously lodged and provided to the parties, be filed with the court by September 4, 2020, but stated it would not consider any further objections to the petition. On August 21, 2020, Wilson filed the fifth supplement to the second accounting that contained the attorney's invoices for the accounting period of June 1, 2016, through April 15, 2018.
After taking the matter under submission, the court issued its order; the order interlineated the court's determination of Wilson's fees ($62,610; a reduction of $7,660 of the amount requested) and the attorney's fees ($462,665.00; a reduction of $46,185 of the amount requested), and found that "[a]ll services for which compensation are sought are found to be rendered in good faith, to have benefited [Thomas] and his Estate, and were required taking into account the best interests of [Thomas]."
According to the record before this court, Judge Evans did not ignore Judge Cahraman's concerns about the fees charged by Wilson and the conservatorship attorneys.
J. The Alleged Denial of an Evidentiary Hearing and Reliance on Inadmissible Declarations.
Appellants fault the probate court for failing to permit them to examine Wilson on August 10, 2018, or introduce evidence on the matters taken under submission. They assert that "their questions [to Wilson] were interrupted and peremptorily shut down by the Court," or "unreasonably restrained by the refusal (at the hearing) by [Wilson] to provide the invoices for review by anyone but the Court." Appellants have forfeited this challenge.
"It is the appellant's burden to demonstrate the existence of reversible error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) "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.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Regarding citations to the record, the appellant must "[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." (Rule 8.204(a)(1)(C).) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been [forfeited]." (Duarte, supra, 72 Cal.App.4th at p. 856.) As the reviewing court, we will not perform an independent, unassisted review of the record "'in search of error or grounds to support the judgment.'" (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
Since appellants have not provided the transcript of the August 10, 2018 hearing, nor cited legal authority or facts in the record to support the assertions they were denied an evidentiary hearing and the probate court erred in awarding the conservator's and attorney's fees, their claims are without foundation and forfeited.
K. The Probate Court Properly Struck the Objections to the Second Accounting.
In their final argument, appellants contend the probate court erroneously struck their objections to the second accounting on the grounds Carpenter and Wear lacked standing and Gloria raised the same objections advanced by nonappointed counsel. In support of their argument, they contend (1) the court had no jurisdiction to discard their standing (Carpenter as a friend of Thomas, and Gloria and Wear as both relatives of Thomas and beneficiaries of his trusts) to challenge the validity of the conservatorship; (2) the denial of Thomas's fundamental right to counsel to challenge the conservatorship's validity afforded "next friend" standing; and (3) they may not be disqualified based on the "substance of their advocacy" and the "imputations about [their] personal interest or motivation." They also assert the court erred in striking their objections based on untimeliness.
Assuming the probate court erred in erroneously striking appellants' objections, we conclude the error was harmless. "As the Supreme Court explained, 'article VI, section 13 [of the California Constitution] [generally] prohibits a reviewing court from setting aside a judgment due to trial court error unless it finds the error prejudicial.' [Citations.] 'The section applies to both constitutional and nonconstitutional errors.' [Citation.] 'It "empower[s]" appellate courts "to examine 'the entire cause, including the evidence,'" and "require[s]" them "to affirm the judgment, notwithstanding error, if error has not resulted 'in a miscarriage of justice.'"'" (Conservatorship of T.B. (2024) 99 Cal.App.5th 1361, 1392-1393.) Thus, even if the probate court abused its discretion in denying appellants' objections based on standing, we cannot reverse unless appellants show prejudice. (Id., at p. 1393.) They cannot do so.
Presumably, appellants' opening brief has identified the objections that they contend have merit and has sufficiently argued the merits on appeal. We have considered each of appellants' arguments and found that they were previously litigated by appellants (individually or collectively), denied by the lower court, and affirmed on appeal. Under the doctrine of res judicata, appellants are precluded from relitigating these issues. (Colombo, supra, 35 Cal.App.5th at p. 416.) Alternatively, we have found that appellants waived argument on the remaining issues by failing to provide an adequate record and/or analysis. (Duarte, supra, 72 Cal.App.4th at p. 856.)
III. DISPOSITION
The order approving the second accounting is affirmed. Respondent is awarded costs on appeal.
We concur: RAMIREZ, P. J., MILLER J.