Opinion
G050785 c/w G050791
03-27-2017
MERRY E. MORGAN, as Trustee, etc., Plaintiff and Respondent, v. AMY WINSLOW, Defendant and Appellant.
Amy Winslow, in pro. per., for Defendant and Appellant. Law Offices of Sally Anne Cox, Sally Anne Cox and Shannon C. Whitman for Plaintiff and Respondent.
ORDER DENYING REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT
The opinion filed on March 27, 2017, is hereby modified as follows:
1. On page 13, in the first paragraph on the page, delete the paragraph's second sentence (beginning "Morgan introduced . . ."), and substitute the following three sentences: "Wilson fails to provide record citations showing she raised for the trial court's consideration any issue concerning trust legal services during the accounting period. Her appellate challenge is therefore forfeited. In any event, Morgan introduced trial exhibits showing check registers with entries for legal services and bank statemetns showing checks clearing the trust account."
Appellant's petition for rehearing is DENIED. The modification does not change the judgment.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00494819) OPINION Appeal from a judgment and a postjudgment order of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed. Amy Winslow, in pro. per., for Defendant and Appellant. Law Offices of Sally Anne Cox, Sally Anne Cox and Shannon C. Whitman for Plaintiff and Respondent.
* * *
Amy Winslow appeals from the trial court's denial of her motion for a new trial and from the underlying trial court judgment approving petitions by Mary E. Morgan (Morgan) to approve three accountings she performed as the successor trustee of Robert W. Rieniets's Separate Property Trust (the trust). Morgan and Winslow are two among several of the deceased settlor's grandchildren, each entitled under the trust to a two and one-half (2.5) percent share of trust assets, while the bulk of the trust (85 percent) went to other beneficiaries. Only Winslow objected to Morgan's accountings, and she points to nothing in the record to show she did so timely under the trust's 90-day window for written objections. On appeal, Winslow raises a host of issues, including challenges to the sufficiency of the evidence to support the trial court's decision to approve the accountings and to impose $60,059.33 in sanctions against her. (See Prob. Code, § 17211, subd. (a) [providing for sanctions for a beneficiary's unreasonable, bad faith contest of a trust accounting]; all further unlabeled statutory references are to the Probate Code.) Winslow does not offer any reason why her new trial motion should have been granted. As we explain, Winslow's appellate challenges lack merit and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURDAL BACKGROUND
Consistent with the standard of review, we set out the facts in the light most favorable to the judgment. (See, e.g., Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229.) Morgan became the trust's fourth successor trustee in September 2008 after her aunt, the second successor trustee, died suddenly and her mother, the third successor trustee, resigned the position. Morgan also became the administrator of her aunt's estate in January 2009. Morgan provided the trust beneficiaries with an annual accounting beginning in June 2009. Her first accounting disclosed trust expenses she paid from trust assets, and that she liquidated two of the trust's noncash assets and distributed $175,000 to the trust beneficiaries according to their respective shares. Her second accounting in June 2010 similarly disclosed trust expenses she paid and beneficiary distributions totaling more than $300,000, and in May 2011, her third annual accounting disclosed trust expenses for that accounting period and beneficiary distributions of almost $75,000.
In June 2011, Morgan petitioned the trial court to approve the three accountings. Winslow provides no record citation to suggest she objected to any of the accountings before a pretrial hearing in December 2011 when she handed Morgan's attorney several pages of objections to each accounting. The terms of the trust provide a 90-day period for beneficiaries to lodge accounting objections, as follows: "Unless [a] beneficiary . . . shall deliver a written objection to the trustee within ninety (90) days after receipt of the trustee's account, the account shall be final and conclusive for transactions disclosed in the account concerning all beneficiaries of the trust, including unborn, unascertained, and contingent beneficiaries.
Notably, Winslow does not include the objections in her appellant's appendix; we located them instead in respondent's appendix, which Winslow failed to cite in her opening brief.
Winslow's December 2011 objections fell well outside the trust's 90-day window. They were, respectively, more than two and one-half years after Morgan mailed her first accounting to the beneficiaries in June 2009; more than a year and a half after she mailed her second accounting; and more than seven months after she provided the beneficiaries with the third accounting. Winslow did not claim she failed to receive any of the accountings. According to Winslow, she immediately and timely wrote to Morgan's attorney with objections after each accounting, but Winslow includes in the record on appeal only some of respondent's trial exhibits, and none of her own, if she introduced any at trial, nor does she provide any citations to her trial testimony.
During discovery, Morgan gave Winslow the underlying source documents she used to generate her accountings, including receipts, invoices, copies of available cancelled checks, check registers and bank statements, and other documents. Winslow points to nowhere in the record where she sought additional or supplementary documentation from Morgan during discovery; she filed no discovery motions or motions to compel production of further documents or other evidence. (See, e.g., Code Civ. Proc., §§ 2031.010 [inspection or copying demand]; 2031.310 [motion to compel further response].)
The matter proceeded to trial, initially set for August 20, 2013. Winslow failed to file exhibit or witness lists or a statement of controverted issues, or otherwise comply with local court rules and procedures. The week before the trial date, Winslow filed several ex parte applications to continue the trial, claiming that one of the beneficiaries, Catherine Morgan, had "critically important testimony" but would be out of the country and unable to testify. The beneficiary had not objected to the accountings and filed no objection to the petitions to approve the accountings.
The trial court denied the ex parte applications and Winslow failed to appear for trial. The court allowed Morgan to present her case-in-chief in which she testified briefly to explain the trust expenses, beneficiary distributions, and other components in each accounting. The trial court admitted her supporting trial exhibits and granted her petitions for approval.
The court later granted Winslow's motion to vacate the judgment (Code Civ. Proc., § 473) on the basis of "documentation purporting to show that work was done on her vehicle on the day of trial." But the court expressed reservations about Winslow's car trouble explanation because her failure to appear for trial followed so closely upon the denial of her ex parte applications for a continuance, and the court observed "she could have tried to come to court for trial in a way other than by using her disabled vehicle, even if she arrived a little late." Nevertheless, the court granted the motion, conditioned on Winslow paying the attorney fees Morgan incurred for the motion and the earlier trial, and the court set the matter for trial again in February 2014.
Winslow again failed to comply with pretrial procedures, failing to provide witness or exhibit lists, a pretrial statement, or to exchange documents or exhibits. When Morgan's attorney noted at the start of trial that "I have not received the objector's trial exhibits," Winslow answered that she had "stopped putting them together," but did not offer to provide them to Morgan. In her testimony, she referred to a "massive [amount of] stuff in my truck that are my exhibits that I didn't bring in," but she did not retrieve them after a break in the proceedings, stating, "There are huge massive stuff [sic] that I didn't get at [the] recess, with copies."
The court allowed Winslow as a self-represented party to testify in narrative form, and Winslow began with complaints that included the timeliness of an initial trust distribution she had hoped would come sooner, Morgan's alleged duty to perform a preliminary accounting before her first accounting in June 2009, and alleged misdeeds of predecessor trustees. The trial court granted Morgan's relevance objection, and reminded Winslow that "you don't . . . have a petition for breach of trust against this trustee" and that "[t]his is not an action for breach of trust for failure to sue the prior trustee for damages." Instead, the issue was the "accounting by [the] trustee" and whether to grant or deny her petitions for approval of the first, second, and third accountings.
Winslow made vague allegations as to the first accounting that expenses Morgan paid as the trustee to maintain and prepare a trust property for sale, "such as keeping the water running, phone serv[ice], trash pickup, and with [sic] other expenses" seemed, in Winslow's view, "like totally illegitimate expenses . . . ." She claimed she had been "receptive" during discovery "to evidence that what [Morgan] spent for the trust was appropriate," but she challenged on unspecified grounds $1,400 in either the first or second accounting, noting "I probably need to look at the documents to see."
The trial court warned Winslow, "Excuse me. [¶] This is trial. This is the time for you to prove your case. For you to say 'I probably need to look at documents,' is very insufficient in your case. [¶] You know, if you want to direct the court's attention to the accounting and say, here is the page and line where she says there's an expense and no backup for it, then that's something the court could deal with. Then the other side, when she puts on evidence, she could address it too, if she wants to. [¶] But for you to make statements without reference or documents isn't helpful to your side in this case."
Winslow claimed in her testimony that Morgan misused trust funds to pay for someone to help her clean a residence that belonged to the trust because in locating and organizing trust documents and other materials in the property, Morgan and her assistant discarded personal property that belonged to the occupant, a family relation of Winslow's. Winslow also complained that Morgan did not provide copies of the checks she used to pay trust expenses.
Morgan explained in her testimony and in exhibits and declarations admitted into evidence that the occupant of the home, one of the former trustees, had been a hoarder who died suddenly, and that in cleaning the home to secure trust property and to prepare the residence for sale, Morgan and her assistant found $250,000 in checks belonging to the trust. Morgan denied misusing trust funds to pay for any of the expenses tabulated in her accountings. As in the first trial, Morgan testified briefly to explain generally the trust expenses, beneficiary distributions, and other components in each accounting, and the trial court admitted Morgan's two binders consisting of 86 exhibits documenting the accountings she performed.
Morgan also explained that in attempting to obtain cancelled checks for trust expenses and distributions to beneficiaries, her inquiries with the bank showed the process would be "time consuming and tedious," so she instead provided Winslow with copies of invoices, check registers showing the payments, and bank statements showing the checks cleared. She noted that Winslow did not subpoena copies of the checks. Winslow did not claim or provide any evidence that trust beneficiaries did not receive or deposit distributions Morgan made to them.
On returning from a recess during Winslow's cross-examination of Morgan, the trial court cautioned Winslow: "Whether the accounting is good or not really has nothing to do with you per se, so this issue of what Ms. Morgan has given you really is irrelevant as to whether [the] accountings are supported. [¶] If these exhibits that have been introduced today constitute valid documentation, then the accountings are valid and really this whole issue of what you were given or not goes more towards [the trust's] request" for attorney fees. The court warned Winslow, "If the court should find that you objected [to the accountings] in bad faith, [then you could or] should be saddled with attorney's fees that the trust [incurred] in this case. [¶] So if you will at least denote some attention as to whether this accounting has any problems that you could point to[,] that would be something that would serve your interest."
Winslow returned to Morgan's use of a paid assistant in cleaning the trust property, noting, "I haven't seen a company check that she actually paid money to her." When the trial court asked, "Why would you need to see the check," Winslow responded, "Because, for some reason, she doesn't want to provide copies of the checks and I believe a copy of the checks [showing who they] were made out to [would] tell me, 'Yes, that person was paid.'" The court observed, "How does it help you if she was paid. . . . [D]oesn't [it] help you if she wasn't paid. That means there's more money in the trust." (Italics added.) Winslow responded, "Well, I just want it." She added as a jumbled explanation, "I know if the accounting is correct and the items are legitimate — so if I sum them up, I could get the money that I need." At that point, the court asked rhetorically, "Or are you nitpicking everything in depth?"
Following the conclusion of the parties' testimony and closing arguments, the trial court granted Morgan's petition to approve her accountings. Finding Winslow's accounting contest was unreasonable and in bad faith, the court awarded Morgan on the trust's behalf $60,059.33 in attorney fees and costs under section 17211. Winslow moved for a new trial, which the trial court denied in July 2014, further sanctioning Winslow $1,750 under section 17211. Winslow now appeals.
II
DISCUSSION
A. The Appeal is Timely
Morgan renews in her briefing her claim the appeal should be dismissed as untimely. We earlier denied her motion to that effect, and the claim has no more merit in her briefing. Morgan maintains that the deadline for Winslow's appeal fell on August 11, 2014, which was 30 days from the trial court's denial on July 11, 2014, of her motion for a new trial. The 30-day deadline applies when the superior court clerk or a party serves the order or notice of entry of the order denying a new trial motion, or when the motion is denied by operation of law. (Cal. Rules of Court, rule 8.108(a) & (b).) But neither of these provisions apply here.
The motion was not denied by operation of law (Code Civ. Proc., § 660; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 152)); to the contrary, the trial court ruled on the motion and expressly denied it in an order awarding Morgan sanctions under section 17211. Nor did the court clerk or Morgan serve the order or notice of entry of the order on Winslow. Consequently, the 180-day period from entry of the underlying judgment governs the time in which Winslow was required to file her notice of appeal. (Cal. Rules of Court, rule 8.108(c).) She met that deadline, with a couple days to spare, by filing her notice of appeal on September 26, 2014. B. Burden of Proof
Winslow contends the trial court erroneously shifted the burden of proof at trial to her to disprove Morgan's accountings, even though Morgan was the petitioning party seeking court approval. (Evid. Code, § 500 [party has burden of proof as to facts essential to his or he claim for relief]; see Cal. Employment Com. v. Malm (1943) 59 Cal.App.2d 322, 323 ["when a party seeks relief the burden is on him to prove his case, and he cannot depend wholly upon the failure of the defendant to prove his defenses"].) Winslow notes that after Morgan provided her opening statement in the trial, and Winslow then gave her opening statement, the trial court heard Winslow's testimony first, as if she were the moving party. As evidence of error, Winslow points to the trial court's statement as she was about to testify: "So, we're going to have Ms. Winslow go first putting on her case. As an objector to accounting, she has the burden of proof."
The trial court did not err in directing Winslow to proceed with her case before hearing Morgan's testimony again. The court has wide discretion to "regulate the order of proof." (Evid. Code, § 320.) Because the court was familiar with the general outlines of Morgan's accounting from the first trial, the court properly may have found it helpful or convenient to hear Winslow testify first.
But that does not mean the court shifted the burden of proof to Winslow, though the court inartfully used that phrase. The burden of proof and the burden of producing evidence are distinct concepts, but even "[a]ttorneys, judges, and commentators often have confused these terms." (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1666 (Sargent).) As the United States Supreme Court has observed, "For many years the term 'burden of proof' was ambiguous because the term was used to describe two distinct concepts. Burden of proof was frequently used to refer to what we now call the burden of persuasion—the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. But it was also used to refer to what we now call the burden of production—a party's obligation to come forward with evidence to support its claim." (DWCP Director v. Greenwich Collieries (1994) 512 U.S. 267, 272.)
The burden of persuasion or overall proof does not shift during trial; in contrast, "the burden of producing evidence may shift between plaintiff and defendant throughout the trial." (Sargent, supra, 110 Cal.App.4th at p. 1667, italics omitted.) In seeking approval of an accounting, the burden of proof rests on the trustee: "The trustee must present to the trial court satisfactory evidence of the accuracy and propriety of the items in his account." (Estate of McLaughlin (1954) 43 Cal.2d 462, 465-466; accord, Purdy v. Johnson (1917) 174 Cal. 521, 527 [burden of proof rests on trustee for his or her accounting, not on objecting beneficiary].)
In context, we are satisfied the trial court did not displace the burden of proof onto Winslow, but only shifted the order of proof. (See Evid. Code, § 664 [official duty presumed to be performed correctly].) As noted, the court made its remark in having Winslow first present her case, as it was entitled to do. Additionally, the court later explained to Winslow that "[w]hether the accounting is good or not really has nothing to do with you per se," which indicates the court understood the ultimate burden of proof rested on Morgan, based on the evidence she presented, including her testimony and admitted exhibits. Driving the point home, the court further explained to Wilson, "If these exhibits that have been introduced today constitute valid documentation, then the accountings are valid." Consequently, we find no merit in Winslow's claim concerning alteration of the burden of proof. C. Sufficiency of the Evidence to Support the Judgment
We next turn to Winslow's challenge to the sufficiency of the evidence to support the trial court's approval of Morgan's accountings.
"With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is . . . substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. No one seems to listen." (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370 (Overton), disapproved on other grounds in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2.)
As a bedrock principle of appellate review, we must presume the judgment is correct unless error is "'affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The burden therefore rests on the appellant to demonstrate error (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650) with specific arguments under specific headings marshalling specific facts (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C)).
Winslow points to six areas of concern in which she claims documentation showing certain listed trust expenses or disbursements is "notably absent from Morgan's accountings." In a related attack, she complains "[t]he three accountings are missing a total of $33,572.89 in receipts, bills, or invoices . . . and so cannot support Morgan's expenses." (Italics added.)
The flaw in Winslow's approach, however, is that she cites no authority for her claim documentation in the form of every underlying receipt, bill, or invoice is required to support a trustee's accounting. To the contrary, the trustee need only provide in her accounting a "summary" of categories of trust "credits" and "charges," including in pertinent part the "amount of disbursements" from trust accounts and any "[d]istributions to beneficiaries" (§ 1061), along with schedules supporting the summary (§ 1062).
These schedules, in turn, specify as to "[d]isbursements" that the name of the payee, date and "nature or purpose" of each must be given, and similarly as to "[d]istributions of cash or property to beneficiaries," the date and amount of each must be provided. (§ 1062.) The code expressly states that "no information in addition to that required in this chapter need be in an account[ing]." (§ 1060.) The code nowhere specifies that particular receipts, invoices, or bills are essential to support trustee expenses; accordingly, the pertinent information may be abstracted and provided on the schedules accompanying the trustee's summary. Section 1062 does mention a schedule of "Receipts," but these are to document sources of trust income during the period of accounting, from such sources as "Gains on sales," "Net income from a trade or business," the "value of any assets received during the period of the accounting," and other "receipts of income or principal." (§ 1061.)
In the absence of a statutory mandate requiring a particular form of evidence, the testimony of a single witness at trial is sufficient to support a judgment. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613; Evid. Code, § 411.) It is the trial court's exclusive province as factfinder to credit or disregard any portion of a witness's testimony. (Citizens Business Bank, at p. 613.) Thus, it is enough to support a trust accounting when the trustee "offer[s] testimony which, though certainly not very detailed, if believed, would substantiate the charges [in an accounting] made for repairs, maintenance, and operating expenses of the properties." (Ennes v. Ennes (1957) 147 Cal.App.2d 574, 579.)
In light of the foregoing principles, Winslow's appellate attack on the six areas of concern she highlights is without merit. First, she asserts a lack of adequate documentation showing "Proof of three payments of distributions to the Estate of Judith Rieniets" as listed in Morgan's accounting. It appears, as at trial, that only the cancelled checks for these disbursements will satisfy Winslow. True, a cancelled check "creates a presumption that the check has been paid" (Evid. Code, § 670, subd. (a)), but that code provision does not purport to establish the only manner to show a check or other disbursement has been paid. Morgan's trial exhibits included copies of trust check registers recording the disbursements and trust bank statements showing those particular checks cleared. She gave this information to Winslow at the outset of the proceedings when Winslow refused to approve the accountings. A reasonable factfinder could conclude from this evidence that the disbursements had been made. Additionally, Morgan testified that she made the disbursements shown on her accountings and, as discussed, that alone is enough to support the trial court's accounting approval.
Wilson's second challenge based on a lack of "[c]opies of any billing or invoices for legal services, and copies of any check[s] showing legal expenses . . . paid during the three accounting periods" similarly fails, and so does her third challenge based on the absence of itemized billing by Morgan's assistant for aiding her in cleaning up the trust property and performing bookkeeping services. Morgan introduced numerous trial exhibits showing attorney invoices for legal services, payments credited by the firm, check registers with entries for legal services, and bank statements showing checks clearing the trust account. The same is true for Morgan's cleaning and bookkeeping assistant, including a handwritten timesheet of days and hours she worked, notations showing the nature of the work and calculation of fees, plus check register entries and corresponding bank statements. And again, Morgan's testimony independently furnished support for these expenses tabulated in her accountings.
Winslow's fourth, fifth, and sixth challenges fail for a different reason. She faults Morgan's accountings for not showing or documenting: (1) "the return of any trust money withheld by Marian Rieniets, the first successor trustee, totaling approximately $22,000"; (2) the existence of liens or levies against the trust "prevent[ing] Morgan from distributing trust assets during the three accounting periods"; and (3) support for "Morgan's claim that pending litigation . . . prevented her from distributing the trust's assets." These claims are simply outside the scope of an accounting. As the trial court observed, if Winslow believed Morgan breached her trustee duties by failing to sue a prior trustee for allegedly misspent funds, or by delaying or failing to make some distributions to particular beneficiaries because of Internal Revenue Service levies or other reasons, Winslow's remedy was to sue for those alleged breaches. But the lack of documentation in the accountings for $22,000 that Morgan did not obtain and restore to the trust or for distributions she did not make simply has no bearing on the validity of her accounting for the expense disbursements and beneficiary distributions she did include in her three accounts. Winslow's attempt to frame her claims as accounting faults is a puzzling non sequitur. In sum, all of Winslow's challenges based on the alleged inadequacy of Morgan's accountings are without merit. D. Sanctions under Section 17211
Winslow contends the trial court erred in sanctioning her for contesting the accountings in bad faith. Section 17211, subdivision (a), provides: "If a beneficiary contests the trustee's account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney's fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied."
Reasonable cause under section 17211 is evaluated under an objective standard of whether any reasonable person would have tenably filed and maintained the objection. (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 926-927 [analogizing to probable cause standard for malicious prosecution].) In contrast, bad faith involves a subjective determination of the contesting party's state of mind — specifically, whether he or she acted with an improper purpose. (Id. at p. 926, fn. 47; see Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263 (Gemini) ["'"[b]ad faith" means simply that the action or tactic is being pursued for an improper motive'"].) "'A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence.'" (Gemini, at p. 1263.) We review a finding of bad faith under the deferential substantial evidence standard. (Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1484.)
The trial court did not err in finding Winslow's accounting contest unreasonable and in bad faith. Winslow justified her objection to Morgan's trustee accountings based in part on Morgan's alleged withholding or delay in issuing expected distributions. But as the trial court explained, that furnished no reasonable basis to contest Morgan's accounting of the distributions and disbursements she did make.
This is particularly true where Winslow also claimed Morgan failed to "validate" trust expenses and disbursements to her satisfaction, but the trial court reasonably could determine the standards Winslow set were arbitrary and intended to harass Morgan. For example, Morgan's accounting schedules provided the payee, date of payment, and nature of expenses and distributions, as required by the Probate Code. But Winslow, while declining to subpoena cancelled checks herself, insisted that Morgan provide them simply because "I want them," even when Morgan provided Winslow with her trust check registers, bank statements showing the checks cleared, and other accounting documents. The trial court reasonably could conclude Winslow's insistence on cancelled checks was baseless and motivated by bad faith intransigence.
Winslow's failure to present evidence at trial also supported the trial court's conclusion her contest was unfounded and in bad faith. Winslow points to nothing in the trial record to suggest she submitted any objections within the trust's 90-day period for accounting contests, rendering her challenge void under the trust's terms. Nevertheless, the trial court extended her every opportunity to present evidence, vacating her default in the first trial and noting at the second trial that, "after all these pleadings and discovery and trial and pretrial" over the course of three years, "I was highly interested in what objections . . . are still remaining."
Winslow vaguely referenced $1,400 she disputed "in either the first or second accounting," but gave no more detail. As the trial court observed, even after closing arguments, "I don't know what the $1,400 [is] referring to — [¶] I would need an identification of what the . . . item is so that I could agree or disagree. Not only that, the other side would be entitled to respond to that, if they are given the specificity of what the alleged defect of this $1,400 [is]. She could say 'Excuse me . . . it's here on pages such and such.'" The court also noted as evidence of bad faith that "there appears to be no recognition that[] questioning the $1,400 worth of [unidentified] expenses" or another unspecified $900 "is costing the trust $60,000" in legal fees and costs. The foregoing evidence amply supports the trial court's award of fees and costs against Winslow under section 17211. E. Other Issues
Winslow contends Morgan's trial exhibits "reveal a failure to properly invest trust funds, a breach of duty" for which she claims Morgan should be surcharged because she failed to invest the sums "during the most opportune investing period in the stock market's recent history . . . ." Morgan disputes the claim, suggesting that Winslow misunderstood the exhibit and failed to grasp that the funds were invested in securities and mutual funds. We do not reach the issue for the simple reason that Winslow did not assert it below; as noted, she filed no action against the trustee for any alleged breach of duty, but instead only disputed the trustee's accounting of expenses and disbursements. Winslow provides no record citation to show where she raised the investing issue and, simply put, new issues may not be tried in the first instance on appeal. (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468-1469.)
The same is true regarding an exhibit Winslow attaches to her opening brief, purporting to itemize $33,572.89 in individual expenses she now claims were improper or lacked adequate documentation. "'The appellate court is . . . confined in its review to the proceedings which took place in the court below and are brought up for review in a properly prepared record on appeal.' [Citation.] 'Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal.'" (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
In another evidentiary claim, Winslow contends the trial court erred by not reading in open court the exhibits Morgan submitted in support of her accounting. But Winslow raised no objection to the exhibits, the trial court admitted them into evidence, and the court as the trier of fact was entitled to review the documents on the bench or in chambers during recesses, just as a jury reviews evidence in the privacy of the jury room. In any event, as discussed, the trial court credited Morgan's testimony that she incurred the trust expenses shown in her accounting, and the court's ruling reflects that it credited the accuracy and sufficiency of her accounting figures and underlying documentation. We simply may not second-guess the trier of fact's conclusion, including credibility determinations (Overton, supra, 94 Cal.App.2d at p. 370). This is particularly true where Winslow seemed unprepared for trial, her limited challenge to an unspecified $1,400 or $900 in expenses was difficult to follow, and she failed to use the discovery process to obtain the level of precision she desired in particular receipts or cancelled checks.
Winslow asserts the trial court erred in failing to award her attorney fees and costs, but this argument simply reprises her claim she should have been the prevailing party for lack of evidence supporting the accountings. The claim has no merit.
Finally, Winslow argues the trial court "incorrectly allowed the trial to proceed despite Morgan's failure to give notice of the trial to the beneficiary Catherine Morgan," another settlor grandchild and 2.5 percent trust beneficiary. The record reflects that Winslow attempted to have the first trial continued so this beneficiary could testify, but it does not appear Winslow made any effort to have her testify at the second trial. If Winslow wanted the beneficiary to testify, presumably she would have done so voluntarily or Winslow could have sought the court's assistance in requiring her to testify.
But nothing supports Winslow's claim the trial on Winslow's objections to the trustee's accounting was somehow void or should have been continued because of alleged defects in notifying Catherine Morgan of the trial. Serving notice safeguards an individual's interest in court proceedings, but parties must represent their own interests. (Code Civ. Proc., § 387.) As our Supreme Court has explained, "California law does not give a party personal standing to assert rights or interests belonging solely to others." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 936, fn. omitted.) Winslow's bid for reversal therefore fails. F. Sanctions on Appeal
Consequently, we deny as irrelevant Winslow's request for judicial notice on appeal of documents purporting to show Catherine Morgan's address, in support of Winslow's claim the trustee misaddressed the notice of trial sent to Catherine Morgan.
Morgan also seeks sanctions on appeal based primarily on her claim the appeal is frivolous because it is untimely. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276 [providing for sanctions on appeal].) She notes as support for her claim the appeal is frivolous that Winslow has been designated a vexatious litigant in other court proceedings, based on a multitude of unmeritorious filings. Morgan also bases her sanctions motion on Winslow's scant record citations (Cal. Rules of Court, rule 8.204), the hours counsel spent verifying whether the documents in the appellant's appendix "had ever been presented" below, and on Winslow's bad faith failure to agree to lend Morgan the record transcript, contrary to our court rules (Cal. Rules of Court, rule 8.153). Morgan had to obtain copies of the transcript at a cost of $784.82, plus courier fees, and she also seeks her court costs on appeal, plus appellate attorney fees of more than $20,000.
Morgan is entitled to her costs on appeal as the prevailing party, including her costs to obtain the transcript. But we deny the sanctions motion because, as discussed, the appeal is timely. The fact Winslow has been deemed a vexatious litigant will have its burdens in further court proceedings in other matters, if any, but it has no bearing on the timeliness of this appeal. And while counsel and this court have been greatly inconvenienced by Winslow's failure to cite the record, her appellate challenges fail in part for that very reason under the standard of review, an apt and generally adequate penalty. A further award of attorney fees for verifying appendix documents does not appear to be warranted since the appellant's appendix seems to be largely comprised of respondent's trial exhibits, with which she was well familiar.
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.