Opinion
B288147
02-06-2020
Conservatorship of the Person and Estate of GUADALUPE ALVARADO. SYLVIA GUERRA et al., Cross-complainants and Appellants, v. M. DENISE KRISTOF, Cross-defendant and Respondent.
Sylvia Guerra and Victor Guerra, in pro. per.; Law Offices of Julia Sylva and Julia Sylva for Cross-complainants and Appellants. No appearance for Cross-defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed on February 6, 2020, be modified as follows:
On pages 15 and 16, footnote 11 is revised to read as follows:
11While Kristof represented herself in part, the vast bulk of fees was incurred by her partner and employees of their law firm, who were not named as parties. We note that while an attorney who litigates in propria persona cannot recover fees for her time (e.g., Trope v. Katz (1995) 11 Cal.4th 274, 280), a court is not precluded from awarding fees for other attorneys and paralegals hired by an attorney to represent her individually, even if they work in her law firm (e.g., Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 96). Sylvia and Victor did not otherwise argue below that any particular category of fees was not recoverable. On appeal Sylvia and Victor contest the court's jurisdiction to enter a sanctions award, and not the calculation of the award or any of its components. They accordingly have forfeited any challenge to the inclusion of Kristof's time in the sanctions award, or to apportionment of any other aspect of the fee award. (G & W Warren's, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 570, fn. 2.) While counsel (who did not sign appellants' opening brief) made a general request at argument that the court consider reducing the sanction, a request that she reiterated in a petition for rehearing that suggested the court should allocate amongst the grounds on which sanctions were awarded, "[w]e do not consider arguments that are raised for the first time at oral argument" (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9), and it is similarly " ' "well settled that arguments . . . cannot be raised for the first time in a petition for rehearing" ' " (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 907).
There is no change in the judgment. Appellants Sylvia and Victor Guerra's petition for rehearing is denied. /s/_________
CHANEY, Acting P. J. /s/_________
BENDIX, J. /s/_________
WEINGART, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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. (Los Angeles County Super. Ct. No. BP131566) APPEAL from an order of the Superior Court of Los Angeles County, Clifford Klein, Judge. Affirmed. Sylvia Guerra and Victor Guerra, in pro. per.; Law Offices of Julia Sylva and Julia Sylva for Cross-complainants and Appellants. No appearance for Cross-defendant and Respondent.
____________________
This case arises out of a conservatorship proceeding involving disputes amongst the family of the conservatee, Guadalupe Alvarado (Guadalupe), over possession of Guadalupe's home. After Guadalupe's conservator, her son Frank Alvarado (Frank), filed petitions for possession of the home, Guadalupe's daughter and son-in-law, appellants Sylvia Guerra (Sylvia) and Victor Guerra (Victor), filed cross-petitions seeking possession as trustees of Guadalupe's revocable living trust. Sylvia and Victor named as a cross-defendant M. Denise Kristof, the attorney for Guadalupe in the original proceedings establishing the conservatorship.
To avoid confusion and intending no disrespect, where individuals share the same last name we refer to them by their first names. (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 215, fn. 1.)
Kristoff acted as a Probate Volunteer Panel (PVP) attorney, who are attorneys appointed by the court to represent the conservatee's interests. (Prob. Code, § 1470, subd. (a); see generally Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 65, fn. 1.)
When Sylvia and Victor's attorney, Timothy L. McCandless, refused to dismiss Kristof from the action, Kristof filed a motion for sanctions. The trial court ultimately granted the motion and ordered Sylvia, Victor, and McCandless to pay $30,000 for their frivolous actions and delaying tactics. Sylvia and Victor now challenge that sanctions order.
As explained below, attorney McCandless also appealed the sanctions order, but his appeal was dismissed for failure to prosecute.
BACKGROUND
A. Frank's First Petition for Possession of Real Property
We glean the facts from the pleadings and orders in the record as appellants have not supplied transcripts from any proceedings, and recite only those facts necessary to our consideration of appellants' challenges to the sanctions order. Frank was appointed Guadalupe's conservator on December 28, 2011. Frank alleges Guadalupe owned property on Del Norte Street in Los Angeles, which Sylvia and Victor rented to Antonio Garcia Escalante (Antonio) and Lucy Ramos, also known as Lucy Escalante (Lucy). After Frank was appointed Guadalupe's conservator, he requested that Sylvia and Victor provide an accounting of rents received for the Del Norte property, and that Antonio and Lucy make rental payments to him; he also requested that Antonio and Lucy vacate the property. None of these individuals complied with Frank's requests.
To the extent that appellants cite to any transcripts, we disregard those citations.
On November 7, 2012, Frank filed a petition in the conservatorship proceeding for possession of real property and accounting of rents against Sylvia, Victor, Antonio, and Lucy (the first petition). Frank asserted that Sylvia and Victor were keeping Guadalupe "sequestered" in their home and exercised undue influence over Guadalupe. Frank alleged Sylvia and Victor had Guadalupe sign various documents, including powers of attorney and trusts, to gain control over Guadalupe's money and property.
Sylvia and Victor filed a special demurrer to the first petition, asserting the petition paralleled the claims and relief sought in a pending elder abuse action Frank filed against Sylvia and Victor (Alvarado v. Guerra (Super. Ct. L.A. County, No. BC485526)). Sylvia and Victor each filed a second demurrer shortly thereafter, based on Frank having sued Sylvia in her individual capacity rather than her fiduciary capacity as trustee of Guadalupe's revocable living trust.
Frank filed a supplement to the first petition on January 8, 2013. He alleged that Antonio and Lucy had voluntarily surrendered the Del Norte property to him. Based on title to the property being held in the name of the trust and the pendency of the elder abuse action, Frank requested that the first petition be dismissed.
It is unclear what action the trial court took on the first petition. One minute order in the record suggests that on January 31, 2013, the trial court denied it without prejudice. Victor and Sylvia attached another purported minute order to their appellate brief, without any accompanying request for judicial notice, that suggests on January 10, 2013 the court sustained at least one of their demurrers, and stayed the petition until completion of the elder abuse suit (BC485526).
The record additionally contains an October 6, 2016 minute order stating that "[t]he previously imposed stay is vacated."
B. The Elder Abuse Suit Is Transferred to the Probate Court
A dispute eventually arose between the parties over whether Guadalupe had revoked her revocable living trust. This dispute led the judicial officer presiding over the elder abuse suit to order Victor and Sylvia to pursue any claims about the status of the living trust before the probate court, and to order Victor and Sylvia to file a new notice of related case identifying the elder abuse and conservatorship matters as related. Department 1 thereafter found the elder abuse and conservatorship matters related, and in August 2014 transferred the elder abuse case in its entirety to the probate court.
C. The Trial Court Finds the Revocable Living Trust Was Revoked
Once both the elder abuse and conservatorship matters were before it, the probate court endeavored to resolve the various issues presented by the parties' overlapping claims in a logical, non-duplicative manner. On February 17, 2015, the trial court issued an order finding that Guadalupe had revoked her revocable living trust. Sylvia and Victor attempted to appeal the order, but their appeal was rejected for failure to provide this court with a copy of an appealable judgment.
In connection with the court's ruling on the revocation of the revocable living trust, Frank's counsel requested the court transfer title to the Del Norte property back to Guadalupe. The court indicated this transfer request was not part of the relief originally requested, and a new petition would need to be filed before such relief could be ordered. D. Frank's Second Petition—for Transfer of Title to Real Property
On March 8, 2016, Frank filed a petition for transfer of title to the Del Norte property back to Guadalupe and for delivery of possession of the property to the conservatorship (the second petition). He alleged that Guadalupe had revoked her living trust, and in July 2015 the court found the Del Norte property was part of the conservatorship estate. However, another of Guadalupe's sons, Armando Alvarado (Armando), had moved into the property in August 2015. When Frank requested that Armando leave, Victor called the police to have Frank removed from the property. Sylvia and Victor continued to keep Frank away from the property, preventing him from repairing it and renting it out for Guadalupe's benefit. Frank requested that title to the property be transferred back to Guadalupe, and that the court order Sylvia, Victor, and Armando to vacate the property. He also requested damages for lost rents.
Armando filed an answer to the second petition and took part in the proceedings. Because he is not a party to this appeal and his actions have no bearing on our resolution of the issues, we do not discuss those actions.
Sylvia and Victor filed a special demurrer to the second petition on July 8, 2016, again based on the pendency of the elder abuse action. At this point, attorney McCandless substituted in to represent Sylvia and Victor, who had previously represented themselves. The special demurrers sought abatement of the second petition pursuant to Code of Civil Procedure section 430.10, subdivision (c), based on the pendency of the elder abuse action.
Code of Civil Procedure section 430.10, subdivision (c) provides that a party may demur to a complaint on the grounds that "[t]here is another action pending between the same parties on the same cause of action."
Frank opposed the special demurrer, claiming the demurrer contained factual misrepresentations. These included concealment of the fact that the court had previously upheld the validity of Guadalupe's revocation of her living trust. Frank also argued abatement of the second petition was not justified by Code of Civil Procedure section 430.10, subdivision (c). In reply, Sylvia and Victor raised for the first time an alternative argument that a stay of the second petition was appropriate under Probate Code section 854, based on the pendency of the first petition and the elder abuse action.
On August 4, 2016, the trial court overruled Sylvia and Victor's demurrer and set the second petition for trial on October 11, 2016. The basis for the overruling of the demurrer is not set forth in the minute order, and Sylvia and Victor have not supplied any transcript of the hearing that would clarify the grounds on which the trial court relied.
On September 7, 2016, McCandless, on behalf of Sylvia and Victor, filed another special demurrer based on the pendency of the elder abuse action. Like the prior demurrer, this special demurrer relied on Code of Civil Procedure section 430.10, subdivision (c). Frank opposed the demurrer on the grounds the trial court had already overruled an identical demurrer, and the demurrer was untimely. He also claimed the special demurrer contained factual misrepresentations.
On September 30, 2016, McCandless filed a reply to Frank's opposition. He first claimed the special demurrer was in fact timely, because a preliminary hearing on the second petition had not yet been held. In addition to relying on Code of Civil Procedure section 430.10, subdivision (c), he cited Probate Code section 1043, subdivision (a), which he claimed "codifies the ancient chancery practice of the 'preliminary hearing.' " (Fn. omitted.) McCandless also argued the second demurrer was not repetitious of Sylvia and Victor's prior demurrer, because it was the first demurrer by "the [t]rustees," who just happened to be Sylvia and Victor, and the trustees had not previously appeared in the action. (Italics omitted.) McCandless suggested that the court focus on Frank's first petition. McCandless claimed that petition had been stayed, the two proceedings should be consolidated, Frank was attempting to have the trial court overrule another judge's decision to stay proceedings on the first petition (as more than one judicial officer had presided over the conservatorship matter), and proceedings on the second petition should be abated as to the trustees and proceed against Armando only. The reply did not mention Probate Code section 854.
Probate Code section 1043, subdivision (a), in the chapter dealing with hearings and orders, simply states that "[a]n interested person may appear and make a response or objection in writing at or before the hearing."
At the October 11, 2016 hearing, the trial court overruled Sylvia and Victor's second demurrer. Sylvia and Victor then filed, in propria persona, what they termed an "individual capacity defendants' answer[s]" (bold and capitalization omitted) to the first and second petitions. They claimed that Guadalupe's revocable living trust owned the Del Norte property. They challenged the prior finding that Guadalupe revoked her living trust based on the trial court's failure to allow rebuttal witnesses before making the revocation finding; they also claimed that no judgment was entered in that proceeding, so it was still pending. They further accused Frank of bringing "a terroristic so-called 'Elder Abuse' suit against [Sylvia and Victor] in their individual capacities, and never disclos[ing] to the court that title to the property was held by" Guadalupe's revocable living trust.
McCandless also filed answers to both petitions on behalf of Sylvia and Victor as "trustees." He made the same assertions as to the prior proceedings that Sylvia and Victor made in their individual answers.
E. Sylvia and Victor's Cross-Petitions
At the same time he filed the answers on behalf of Sylvia and Victor as "trustees," McCandless filed what he designated as a compulsory cross-petition to Frank's first petition pursuant to Probate Code section 850, subdivision (a)(3)(A). McCandless filed the cross-petition on behalf of Sylvia and Victor, both in their capacities as trustees of Guadalupe's revocable living trust and in their individual capacities. He named Frank as a cross-defendant in his capacities as conservator of Guadalupe's estate, as successor in interest to Guadalupe as settlor of her revocable living trust, as representative of Guadalupe as life beneficiary of her trust, and individually as a beneficiary of the trust. McCandless also named as cross-defendants Armando and all the other siblings named as beneficiaries of the trust. By this cross-petition, Sylvia and Victor sought to set aside Guadalupe's revocation of her living trust on the grounds of lack of capacity, undue influence, duress, and fraud.
This Probate Code provision states that a petition may be filed by "[t]he trustee or any interested person . . . [w]here the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another." (Prob. Code, § 850, subd. (a)(3)(A).)
Although attorney Kristof was not listed in the caption, she was identified as a cross-defendant in the body of the cross-petition. The cross-petition stated that Kristof was sued "in her capacity as court-appointed counsel for then-proposed [c]onservatee," Guadalupe. It alleged that Kristof received a writing from Guadalupe in 2013 stating she already had a trust and there was not to be any new trust. It further alleged that Frank and others, "in order to trick [Guadalupe] into signing an instrument whose content[s] and legal effect[ ] she did not understand," lied to Kristof during hearings on competing petitions to establish a conservatorship over Guadalupe. "As a result," during these conservatorship proceedings, Kristof "attempted to extort [Sylvia and Victor] into signing over the subject property away from [Guadalupe's revocable living trust], threatening to cause criminal prosecution by the Los Angeles County District Attorney." The cross-petition requested "a special jury verdict that lawyer [Kristof] committed the act of attempted extortion against [Sylvia and Victor], in the course of her professional duties, during a mediation at the time of the proceedings upon the competing petitions for establishment of a conservatorship for" Guadalupe.
McCandless filed a similar cross-petition to Frank's second petition. This cross-petition specifically named Kristof as a cross-defendant. Again, Sylvia and Victor sought to set aside Guadalupe's revocation of her living trust on the grounds of lack of capacity, undue influence, duress, and fraud.
F. Kristof's Attempts to Meet and Confer
Kristof sent a letter to McCandless on November 29, 2016 attempting to meet and confer prior to bringing a demurrer; he did not respond. She sent a second letter on December 8, 2016, again requesting to meet and confer. McCandless then responded to her initial letter, stating that "[n]othing in either of the two compulsory cross-petitions seeks any direct relief against you. Rather, each seeks the same in rem relief: a cancellation of instrument, namely the purported Revocation of Trust which was signed by the Conservatee," Guadalupe. McCandless further claimed that Sylvia and Victor's purpose in naming Kristof as a cross-defendant "was to ensure that you were given notice of a proceeding that would potentially involve your testimony, and to ensure that you were timely given the opportunity to be heard."
McCandless also warned Kristof: "Before you go and try to bring a Special Demurrer upon the ground that you have been inappropriately joined, you would do well to learn the distinction between 'indispensable parties', 'necessary parties', and 'proper parties'. Under California's decisional law, you are clearly a 'proper party', if not a 'necessary party'. Certainly you are not an 'indispensable party'. [¶] It is very sad, but because the California Bar Exam does not examine candidates on the knowledge of California's enacted criminal law, many practitioners, such as yourself, frequently commit extortion, and are not even aware of it. . . ."
McCandless concluded by stating that his office had acted "very fairly" toward Kristof by providing her with ample notice of the hearings. His clients' position was that Kristof "should be given the right to be heard, beyond whatever [she] might be entitled to say as a mere witness under subpoena." He advised her to "consider the procedural consequences, and perhaps advantages, of letting a default be taken against you. You should also seriously consider the estoppels and waivers that may operate against you, should you somehow manage to get dismissed as a defendant in a case in which there could be no imposition of liability against you."
Kristof sent a third letter to McCandless on December 13, 2016, again seeking to meet and confer with him. She attempted to point out that if no relief was sought from her, she had no interest in that action and could not be a party. She requested that he dismiss her from the action or amend the cross-petition to remove her as a cross-defendant. She advised: "Failing your appropriate action, I may seek full legal recourse, including sanctions and fee shifting."
Kristof also noted that McCandless had repeatedly failed to provide his correct State Bar number and had failed to sign the cross-petitions. She reiterated: "Please be aware that I consider the cross-[petitions] as frivolous—lacking in evidentiary or legal support, totally and completely without merit. If you do so republish them, and continue in your vapid efforts to embroil me [in] your client[s'] pointless fight, I may seek sanctions against you and your client[s]." Kristof added that, according to the State Bar, McCandless had been suspended from the practice of law for ethical violations. She asked by what right he claimed to be a practicing attorney.
McCandless responded that he was "not presently suspended from the practice of law." He asserted that Kristof was a proper party to the action because she had " 'interests' that are implicated by the subject compulsory cross-petitions." He also asserted that the statute of limitations did not apply in probate actions.
G. Kristof's Demurrer and Motion To Strike
On December 20, 2016, Kristof filed a demurrer to the cross-petition to Frank's first petition. She alleged Sylvia and Victor "failed to make sufficient allegations to support a cause of action against [her] and seek redress for a tort that does not exist." She also alleged that she was inappropriately joined as a defendant, any cause of action against her was barred by the statute of limitations, and any recovery was barred by the litigation and mediation privileges. Further, she asserted she was protected by quasi-judicial immunity because she was a court-appointed attorney when performing services for Guadalupe.
On January 4, 2017, Kristof filed a motion to strike all portions of Sylvia and Victor's cross-petitions that referred to her. McCandless filed opposition to the motion, claiming that it was untimely.
McCandless also filed two separate oppositions to Kristof's demurrer. He asserted that Sylvia and Victor did not attempt to plead any tort against Kristof "through the mere act of requesting a special finding of fact by the jury." Instead, he suggested they joined Kristof prophylactically so she had standing to be heard on issues that involved her, and because Kristof had an "interest" in the proceeding she could not be dismissed.
Sylvia and Victor thereafter filed notices of stay of proceedings, based on their having filed a bankruptcy petition. On January 31, 2017, the trial court stayed the proceedings.
On February 10, 2017, McCandless filed a request for dismissal of Kristof. The dismissal was not entered because the request did not identify the petition from which she was being dismissed.
H. The Sanctions Motion
On March 27, 2017, Kristof filed a motion requesting an award of sanctions under Code of Civil Procedure section 128.5 for frivolous actions and delaying tactics. She claimed the motion fell within an exception to automatic bankruptcy stays. Kristof alleged that Sylvia, Victor, and McCandless "made misrepresentations, engaged in frivolous actions, [and] caused unnecessary delay" of the proceedings. They "insisted on improperly joining [Kristof] in this matter, despite knowing the impropriety of their efforts." Additionally, over a year after the trial court's ruling that Guadalupe revoked her revocable living trust, Sylvia and Victor continued to ignore the ruling and the limitations on motions for reconsideration, and to attempt to countermand the revocation via improper collateral attacks. Kristof sought $30,494.64 in sanctions.
Kristof requested that the court take judicial notice of State Bar records showing that McCandless used another attorney's bar number on his filings and had a "lengthy disciplinary history and repeated suspensions from the practice of law."
On April 12, 2017, Kristof filed notice of Sylvia, Victor, and McCandless's non-opposition to her motion for sanctions. She noted that Sylvia and Victor acknowledged that they received service of the motion but filed no response. McCandless simply ignored the motion.
McCandless then filed a declaration in response to Kristof's motion on April 17, 2017. He claimed he did not respond to Kristof's motion "because it was brought in derogation of [the trial court's] order on January 31, 2017" staying the proceedings due to the bankruptcy filing. He also claimed that Kristof ignored the fact the case was dismissed as to Kristof in February 2017.
On April 19, McCandless filed opposition to Kristof's motion on behalf of himself, Sylvia, and Victor. McCandless claimed Kristof was not entitled to recover attorney's fees because she represented herself. He also claimed that he dismissed the action against Kristof on February 10, 2017, and she filed her motion after that, making an award of sanctions unwarranted. Finally, McCandless disputed Kristof's assertion that he intentionally tried to deceive the court by using a false State Bar number.
While Kristof represented herself in part, the vast bulk of fees were incurred by her partner and employees of their law firm, who were not named as parties. We note that while an attorney who litigates in propria persona cannot recover fees for her time (e.g., Trope v. Katz (1995) 11 Cal.4th 274, 280), a court is not precluded from awarding fees for other attorneys and paralegals hired by an attorney to represent her individually, even if they work in her law firm (e.g., Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 96). In any event, on appeal Sylvia and Victor contest the court's jurisdiction to enter a sanctions award, and not the calculation of the award or its components. They accordingly have forfeited any challenge to the inclusion of Kristof's time in the sanctions award. (G & W Warren's, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 570, fn. 2.) While counsel (who did not participate in the appellate briefing) made a general request at argument that the court consider reducing the sanction, "[w]e do not consider arguments that are raised for the first time at oral argument." (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9.)
In reply, Kristof reiterated that her motion for sanctions was not affected by the bankruptcy stay. She asserted that McCandless "continued to appropriate" another attorney's bar number. She also pointed out that the cross-petitions had not been dismissed as to her.
On May 1, 2017, Sylvia and Victor, in their individual capacities and in propria persona, filed a document indicating that they were not parties to the cross-petitions, and everything filed after January 31, 2017 was in contempt of the bankruptcy stay.
I. The Ruling on Kristof's Demurrer and Motion To Strike
The following day, May 2, the court granted Kristof's motion to strike and struck the cross-petition to Frank's first petition in its entirety. The court found "that the cross-petition was untimely filed without prior leave of court in violation of Code of Civil Procedure section 428.50."
The court later dismissed the cross-petition to Frank's second petition with prejudice.
In light of this ruling, the trial court found the demurrer was moot, "although if deemed not moot, [it] would have been sustained." The court noted the cross-petition did "not assert claims against [Kristof], and does not request relief from [Kristof]. The only purported cause of action targeting [Kristof] is for 'attempted extortion,' a crime in the Penal Code rather than a civil tort." Additionally, Sylvia and Victor had "no legal basis for naming" Kristof as a party "in a Probate Code section 850 petition. She has no interest in the property at issue, and there is no viable civil or tort claim that has been asserted against her."
The same day, Frank filed a notice of termination of the automatic stay. On April 25, the bankruptcy court had granted his motion for relief from the automatic stay in both this case and the elder abuse case.
J. Trial and Rulings
After further procedural maneuvering, trial was held on May 30, 2017. Guadalupe died on June 16, 2017. The court held an additional evidentiary hearing on June 19, 2017, and took the matter under submission.
On July 7, 2017, the court issued its ruling. It granted the petition to transfer title to the Del Norte property to the conservatorship estate, "based on a previous ruling by [the trial court] that there is no trust, and failure to contest this relief by [Sylvia and Victor] at the trial." It ordered Sylvia, Victor, and Armando to vacate the property and remain off it. It awarded damages for rental value of the property. Finally, the court awarded Frank costs, including reasonable attorney's fees.
On July 17, the court ruled on Kristof's sanctions motion. It reiterated that Sylvia and Victor had "impermissibly filed two oppositions" to Kristof's demurrer. Their lengthy and incoherent oppositions failed to explain their violation of the rules of court. Additionally, the oppositions made "multiple references to entirely irrelevant topics[,] such as the creation of 'novel torts,' special and general verdicts in jury trials, and actions in chancery." The discussion of " 'novel torts' " had no meaningful conclusion, and "[a] discussion of 'actions in chancery' is not germane to California law, which does not have a separate chancery court, and does not use archaic English common law terms for equitable actions."
Aside from the cross-petitions' total lack of merit, the court noted that "Sylvia and Victor improperly attempted to bring an action against the former PVP counsel in the matter after trial was set, in violation of [Code of Civil Procedure section] 428.5[, subdivision] (b). No leave to amend was requested or obtained prior to the filing. . . . No causes of action are properly stated against [Kristof]. Sylvia and Victor even make the incredible argument that the law does not require them to assert causes of action against a defendant." The court was at a loss to understand the theory under which they named Kristof a cross-defendant. The court also castigated Sylvia and Victor for filing the cross-petitions in their fiduciary capacities despite the trial court's prior ruling that Guadalupe's living trust had been revoked.
After recounting other evidence suggesting that the actions of Sylvia, Victor, and McCandless were frivolous and taken for the purpose of unnecessary delay, the court stated that it would reduce "the requested sanctions to $30,000 for the fees and costs to defend these allegations which have no ascertainable basis in law or fact regarding a court appointed counsel." On December 11, 2017, the trial court filed its order awarding sanctions for frivolous actions and delaying tactics. It ordered Sylvia, Victor, and McCandless, jointly and severally, to pay Kristof $30,000 in sanctions.
McCandless filed a timely notice of appeal from the December 11, 2017 order on behalf of himself and Sylvia and Victor in their capacity as trustees. Sylvia and Victor, in their individual capacities, filed a separate timely notice of appeal from the December 11, 2017 order.
We dismissed McCandless' appeal on May 23, 2019 for failure to file an opening brief.
DISCUSSION
A. Standard of Review
Our jurisdiction is limited to the order designated in the notice of appeal—here, the December 11, 2017 sanctions order. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846; Faunce v. Cate (2013) 222 Cal.App.4th 166, 169-170.) We are not permitted to address issues pertaining to orders not specified in the notice of appeal. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-47.) Nor can we consider challenges to previous orders as to which the time to appeal has passed. (Canal-Randolph Anaheim, Inc. v. J. E. Wilkoski (1980) 103 Cal.App.3d 282, 288, fn. 3; cf. In re S.B. (2009) 46 Cal.4th 529, 531-532.)
Under Code of Civil Procedure section 128.5 (section 128.5), the trial court has "discretion to award 'reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.' (Id., subd. (a).) ' "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.' (Id., subd. (b)(2).) 'Section 128.5 permits the trial court to impose sanctions under certain narrowly defined conditions. Sanctions are warranted only if the moving party meets its burden of proving that the opposing party's action or tactic was (1) totally and completely without merit, measured by the objective, "reasonable attorney" standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. [Citations.] Whether sanctions are warranted depends on an evaluation of all the circumstances surrounding the questioned action. [Citation.]' [Citation.]" (Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893.)
Because the decision to award sanctions under section 128.5 is discretionary, we review such a decision under the abuse of discretion standard. (Wallis v. PHL Associates, Inc., supra, 168 Cal.App.4th at p. 893.) The trial court's determination of the legal principles guiding its exercise of its discretion, however, is subject to de novo review. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)
Discretion is abused where the trial court's decision is arbitrary or capricious (cf. Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878) or exceeds the bounds of reason (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388). " 'In reviewing [the trial court's] exercise of discretion we are informed by "several policy guidelines: (a) an action that is simply without merit is not by itself sufficient to incur sanctions; (b) an action involving issues that are arguably correct, but extremely unlikely to prevail, should not incur sanctions; and (c) sanctions should be used sparingly in the clearest of cases to deter the most egregious conduct." [Citation.]' [Citation.] 'In accordance with the usual rule on appeal, the judgment or order of the trial court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. [Citation.] Where evidence is in conflict, the appellate court will not disturb the findings of the trial court. [Citation.]' [Citation.]" (Wallis v. PHL Associates, Inc., supra, 168 Cal.App.4th at p. 893.)
B. The Trial Court Had Jurisdiction To Impose Sanctions
Sylvia and Victor raise several arguments that the trial court lacked jurisdiction over Frank's petitions, and thus lacked jurisdiction to impose sanctions. We discuss each in turn.
1. The Pending Elder Abuse Action Did Not Deprive the Trial Court of Jurisdiction
(a) Any prior stay did not prevent moving forward with the second petition
Sylvia and Victor first contend the trial court lacked jurisdiction to impose sanctions because the conservatorship proceedings should have been stayed pending resolution of the elder abuse action. According to Sylvia and Victor, in January 2013 Judge Levanas stayed the first petition pending resolution of the elder abuse case, and a subsequent judicial officer (Judge Klein) then lifted that stay. Sylvia and Victor assert Judge Klein lacked authority to lift the stay because "one trial court judge may not reconsider and overrule a ruling of another judge." (Curtin v. Koskey (1991) 231 Cal.App.3d 873, 876.)
The record shows that Sylvia and Victor forfeited this argument, and further invited the very error of which they now complain. The stay at issue applied to the first petition. On August 4, 2016, the court overruled the demurrers of Sylvia and Victor and set the second petition for trial on October 11, 2016. As Armando was not present at the hearing on the demurrers to the second petition, Frank's counsel gave notice on August 15, 2016 of the trial date to all parties, including Armando. Five days before trial was to begin, Armando filed an ex parte application to continue the trial. He said he had wanted to start litigating the second petition earlier, but Sylvia and Victor told him the action could not go forward because it was "practically identical" to the stayed first petition. Armando requested a continuance, claiming he was misled about whether the trial would proceed on October 11.
The ex parte was heard on October 6, 2016. The probate court continued the trial to January 31, 2017, and clarified that the prior stay was lifted. Victor was present at the hearing; Sylvia was not. There is nothing in the record that Sylvia or Victor objected to the lifting of the stay in connection with that hearing. They accordingly have forfeited the argument that lifting the stay was error. (In re Campbell (2017) 11 Cal.App.5th 742, 756 ["We will not address arguments raised for the first time on appeal"].) Moreover, the answers filed by Sylvia and Victor sought consolidation of the first and second petitions for purposes of trial—in other words, that the stay be lifted on the first petition so it could move forward along with the second petition. "The doctrine of invited error prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error." (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1118.)
In any event, the stay of the first petition was based on the facts before the court in January 2013. "[A] trial court ruling is binding on subsequent judges only as to those aspects of the ruling necessary to decision on the matter before the initial judge." (Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 500.) The stay was lifted in October 2016 by the new judicial officer assigned to the conservatorship case, after developments following January 2013 including, most particularly, the transfer of the elder abuse action to the probate court so that both were being overseen by the same judicial officer. "While it is entirely appropriate to preclude later trial judges from reconsidering an earlier judge's ruling on issues properly presented for decision, there is no reason to require subsequent judges to adhere to an earlier judge's expression of views on issues that were not actually before him or her." (Ibid.) Given the changed circumstances between January 2013 and October 2016, including both cases being before the same judicial officer and the need for that judicial officer to decide issues common to both of the cases in the most efficient manner, any later decision lifting a discretionary stay "did not violate the rule prohibiting a trial judge from reconsidering and overruling an earlier ruling by a different trial judge in the same case." (Ibid.)
(b) Probate Code section 854 did not require a stay
Sylvia and Victor further argue Probate Code section 854 deprived the court of jurisdiction to lift the stay and set the petitions for trial. That section provides: "If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. . . ." (Prob. Code, § 854.) Sylvia and Victor failed to raise this argument below, where they relied instead on Code of Civil Procedure section 430.10, and therefore have forfeited it. (In re Campbell, supra, 11 Cal.App.5th at p. 756.)
While the reply brief in support of Sylvia and Victor's first special demurrer mentioned Probate Code section 854, " ' " 'the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.' " [Citation.]' [Citation.]" (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.) Sylvia and Victor give no reason, much less a good reason, for their failure to raise Probate Code section 854 in their opening briefs in support of their special demurrers.
Appellants having forfeited their argument, Probate Code section 854 did not bar the trial court's actions, as the statute does not deprive the probate court of subject matter jurisdiction where there is a pending civil action. (Richer v. Superior Court (1976) 63 Cal.App.3d 748, disapproved on another ground in Kowis v. Howard (1992) 3 Cal.4th 888, 899.) Thus, the trial court had jurisdiction over the proceedings and, in particular, jurisdiction to address sanctionable conduct before it.
2. Guadalupe's Death Did Not Deprive the Trial Court of Jurisdiction
Sylvia and Victor also contend that the trial court lacked jurisdiction to sanction them because it lost jurisdiction after Guadalupe died. In support of this claim, they cite Probate Code section 2630, which provides: "The termination of the relationship of . . . conservator and conservatee by the death of either, . . . does not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the . . . conservator or for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts . . . ."
As noted in Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, the conservatee's death "does not terminate the probate court's jurisdiction over the conservatorship estate. The court retains jurisdiction over the estate 'for the purpose of settling the accounts of the . . . conservator or for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts . . . .' (Prob. Code, § 2630, italics added.) Relevant case law illustrates that the scope of the court's jurisdiction should be construed broadly to accomplish these goals. [Citations.]" (Id. at pp. 1088-1089.)
Sylvia and Victor cite no authority to suggest that sanctioning parties who file frivolous documents and delay the proceedings is not incident to the enforcement of court orders regarding the estate. The court's jurisdiction covers actions which affect the conservatorship estate. (Conservatorship of Starr (1989) 215 Cal.App.3d 1390, 1395.) That jurisdiction is broad enough to cover the sanctions order here.
C. The Trial Court Did Not Err in Imposing Sanctions Based on Filing the Cross-petitions
Sylvia and Victor also attack the merits of the sanctions order, claiming the trial court erred in ruling that their cross-petitions were untimely, striking the cross-petitions, and sanctioning them for filing the cross-petitions. Even assuming arguendo that the trial court erred as a matter of law in ruling that the cross-petitions were untimely, the pertinent question before us is whether the trial court abused its discretion in finding that naming Kristof as a cross-defendant " 'was (1) totally and completely without merit, measured by the objective, "reasonable attorney" standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard.' " (Wallis v. PHL Associates, Inc., supra, 168 Cal.App.4th at p. 893.)
Sylvia and Victor do not attempt to justify suing a former court-appointed attorney on the purported grounds of "ensur[ing] that [she was] given notice of a proceeding that would potentially involve [her] testimony, and to ensure that [she was] timely given the opportunity to be heard." They cite no authority for their claims that the law does not require pleading the standing to sue a defendant, or that a person may be named as a defendant merely because that person has evidence that would invalidate an instrument. Sanctions are properly awarded for suing someone without any basis for stating a claim against that person. (See Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353, 359.)
D. The Remaining Arguments Regarding the Sanctions Order Are Meritless
Sylvia and Victor make several claims of error regarding the sanctions award which consist solely of headings, including that the trial court erred in sanctioning them individually as opposed to in their fiduciary capacity, and in sanctioning them in addition to McCandless. As these claims of error lack any analysis or supporting authority, we do not consider them. (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 820, fn. 33; accord, Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 457, fn. 4.)
E. We Lack Jurisdiction Over the Remainder of Sylvia and Victor's Claims
Sylvia and Victor claim the trial court erred in setting trial of the conservatorship petition, in striking certain filings, in refusing to grant their motion for reconsideration of the ruling on Kristof's motion to strike their cross-petition, in holding motions to strike were time-barred, and in imposing a pleading deadline upon them. As these orders are not the subject of the order identified in the notice of appeal, we lack jurisdiction to consider them. (Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at pp. 45-47; Sole Energy Co. v. Petrominerals Corp., supra, 128 Cal.App.4th at p. 239; Canal-Randolph Anaheim, Inc. v. J. E. Wilkoski, supra, 103 Cal.App.3d at p. 288, fn. 3.)
DISPOSITION
The December 11, 2017 sanctions order is affirmed. The parties to bear their own costs on appeal.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, Acting P. J.
BENDIX, J.