1

Filed 12/22/23 Sandoval v. Hupp CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DENNIS SANDOVAL, as Successor Trustee, etc., Plaintiff and Respondent,

v. PAUL HUPP, Defendant and Appellant. E077464 (Super.Ct.No. PRIN2100300)
OPINION

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Affirmed. Paul Hupp, in pro per, and for Defendant and Appellant. Dennis M. Sandoval, in pro per, and for Plaintiff and Respondent.2

Paul Hupp, the primary beneficiary of his mother’s trust, appeals from an order granting the petition filed by Dennis Sandoval to confirm Sandoval as successor trus tee, to approve his proposed acts in that capacity, and to fix his compensation above that specified in the trust

. (Prob. Code, § § 15680, 17200 , unlabeled statutory citations refer to this code.) We conclude that all of Hupp’s arguments lack merit, and we accordingly
affirm.
BACKGROUND
A. The Trust Hupp’s mother, Aristea Hupp 1 , created the Revocable Living Trust of Aristea Hupp in September 1994 and amended it for the third and final time in March 2020 (the trust)

. Hupp is the primary beneficiary of the trust, the assets of which include two single family residences in Beaumont, a condominium in San Diego, a checking account , a savings account, and an individual retirement account

. Upon Aristea’s death, t he trustee is required to satisfy the expen ses and claims against the estate. If trust income or assets remain after such payments, the trustee must make specific , personal property
distributions to Aristea’s daughter (Leslie Ryder) and granddaughters. After those specific distributions, the trus tee has discretion to distribute to Hupp “ as much of the [trust] income and principal ” as the t rustee “ determines necessary or advisable for [Hupp’s] health, education, maintenance or support

. ” The trust contains a no

- contest clause prohibiting any party from challenging the trustee’s decisions regarding

1 Because she and Hupp share the same last name, we refer to Aristea by her first name to avoid confusion. No disrespect is intended.3

distributions to Hupp . Finally , the trust gives the trustee broad powers to manage and dispose of trust property for the benefit of the estate. As relevant here, the trust permits
the trustee to sell trust property “[w]ith or without court authorization” and to prosecute, pay, or settle “any claim against the tru st

. ” Aristea named her niece, Lisa Shiozaki, first successor trustee, and her daught er, Ryder , second successor trustee. Under the terms of the trust, i f Shiozaki and Ryder are unwilling or unable to serve, then they may select a professional fiduciary to serve in their place , and i f they are unable to make th at selection , then the court must appoint a

new trustee. The trustee may resign at any time without giving a reason , and any beneficiary or cotrustee may petition the court to remove the trustee on specified grounds, including breach of trust

. The trust sets the trustee’s comp ensation at $50 per hour. Aristea died on April 12, 2020

. One month later, Shiozaki resigned as trustee , Ryder declined the position , and the two of them selected Sandoval, a licensed attorney and professional fiduciary, to serve as trustee. On May 13, 2 02 0, Sandoval executed a witnessed and notarized acceptance of trusteeship.
B

. The Petition In March 2021, Sandoval filed a verified petition under section 17200 , asking the

court to confirm his position as trustee, to approve certain acts , and to fix his compensation at rate s of $250 per hour for litigation

- related trust work and $175 per hour
for all other trust tasks , with lower rates for work done by another professional fiduciary under Sandoval’s supervision ($150 per hour) and for secretarial or b ill

- paying services4

($35 per hour)

. The petition sought approval to sell the trust’s real propert y and use the proceeds to pay off the estate’s debts and settle outstanding litigation , which, according

to the petition, included Hupp and Aristea ’s law suit against their former homeowners
association (Solera Oak Valley Greens Association ) and various former neighbors (the Solera suit)

. The petition sought approval to use any leftover funds to purchase for Hupp

a new residence located outside the Solera community and , if there were still funds remaining, to provide Hupp with a monthly distribution. Regarding the proposed fee schedule , the verified petition stated that the increased
rates were reasonable because administration of the trust had become more difficult than originally contemplated as a result of Hupp’s uncooperative and litigious behavior

. The petition attached recent orders from federal court and Riverside County Superior Court declaring Hupp a vexatious litigant. The petition stated that H upp had not responded to Sandoval’s attempts to discuss trust issues with him and had instead tried to file a lawsuit against Sandoval, Shiozaki, and Ryder in federal court

. According to the petition, the

court rejected the filing because of Hupp’s status as a vexatious litigant. The petition stated that Hupp’s litigiousness was the reason Shiozaki resigned and Ryder refused to serve as trustee, and it was also the reason Shiozaki and Ryder could not find a professional fiduciary willing to serve as trustee for a rate of $50 per hour. Hupp filed an opposition to the petition , arguing that Sandoval breached his fiduciary duty to the trust “in every conceivable and possible way.” The opposition did not address the pro posed acts or the terms of the trust

. Rather, Hupp used the filing to5

argue that Sandoval, Ryder, and Shiozaki had committed various felonies, to disparage
this court and the probate court with insults and profanity , and to threate n to kill
Sandoval

. Under the heading “Conclusion,” the opposition state d , “ SANDOVAL is not going to ‘negotiate’ anything related to TRUST.

. . . If SANDOVAL does, [ Hupp] is going to blow SANDOVAL’S head off. Is that clear to you SANDOVAL? You are not going to engage in an ymore fraud . . . from here on, and if you do you are going to get your motherfucking head blown off. You ’re now on notice SANDOVAL, your little punk ass proceeds at your own peril from here on.”
In May 2021, t he trial court held a hearing on the petition , and both parties appeared telephonically. Sandoval told the court that one of the reasons he had filed the petition was to get an opportunity to speak with Hupp , as Hupp seemed willing to communicate only through litigation . “I filed what I filed here

. . . with the hope that Mr. Hupp would make an appearance so that I can try to get him to understand that

. . . I’d
like to communicate with him if he will respond to my e

- mails, to my phone calls, or to my letters because . . . I’ve gotten no response ot her than filing of court papers.” Hupp responded that he objected to the petition on the basis of the arguments in his opposition.
The court took the matter under submission and on June 29, 2021 , issued a written order granting the petition in full. Hupp , who represent s himself on appeal as he did in the probate court, timely appealed from the court’s order. At some point before he filed his opening brief, Hupp6

was convicted of criminal threats and elder abuse in Riverside County and was incarcerated

. 2

DISCUSSION A trustee may file a petition in the probate court to approve certain actions,

“ including the exercise of discretionary powers ,” and to fix compensation. (§ 17200,
subd s . (b)(5) , (9). ) T he probate court, “ in its discretion [,] may make any orders and take any other action necessary or proper to dispose of the matters presented by [such a] petition .” ( § 1720 6.) On appeal from an order granting a petition brought under section 17200, we independently construe the terms of the trust and review the probate court’s
decision for abuse of discretion. ( Burch v. George (1994) 7 Cal.4th 246, 254 [ “The interpretation of a will or trust instrument presents a question of law ”]; Estate of Billings (1991) 228 Cal.App.3d 426, 430 [“ the discretion is that of the trial court, and we will only interfere with its ruling if we find that

. . . no judge reasonably could have reached the challenged result ”].) We presume the court’s order is correct, and it is the appellant’s

2 This appeal was submitted on October 31, 2023, after we issued our tentative opinion and neither party requested o ral argument. The following day, Hupp filed a late request for oral arg ument, and on November 3, 2023, we issued an order vacating submission and allowing the parties to file written statement s in lieu of oral argument

. (See Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642 [a prisoner does not ordinarily have the r ight to appear personally in court on civil matters , but courts have broad discretion to devise alternative means to give prisoners meaningful access to the courts ].) Hupp did not file a written statement by the deadline of December 4, 2023. On December 18 , 2023 , Hupp attempted to file a letter asking for an update on a request for a continuanc e of oral argument that he claimed to have filed on some earlier, unspecifi ed date. We have no record of such a request. We rejected Hupp’s letter b ecause the matter was submitted when he failed to file a written statemen t

. ( Cal. Rules of Court, rule 8. 256 .)7

burden to demonstrate reversible error. ( Denham v. Superior Court (1970) 2 Cal.3d 557,
564 ( Denham ) .) Hupp ’s arguments for reversal fail to demonstrate error . As an initial ma tter, Hupp appears to challenge Sandoval’s standing to file the petition , asserting that Sandoval is not the proper trustee because Hupp had “no input” in selecting him

. However, the trust does not give Hupp any say in the matter

. The authority to select the trustee lies with Shiozaki, Ryder, and the probate court. Sandoval was selected by Shiozaki and Ryder, in accordance with the terms of the trust. If Hupp believes that there

ar e legitimate reasons why Sandoval should not serve as trustee, h is recourse is to file a removal petition under section 17 200. (§ 17200, subd. (b)(10).) Next, Hupp contends that the probate court erred by failing to “ make rulings on” the “legion of facts” that he presented in his opposition to the petition. The “ facts ” that Hupp is refer ring to are his numerous allegations of wrongdoing against Sandoval, Shiozaki, and Ryder. Those statements are merely unsupported , conclusory allegations
that have no bea ring on the issues presented by the probate court’s decision

. C onsequently, they provide no basis for reversal. ( See Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826

- 827 & fn. 1 ( Sheily ) [reviewing courts may disregard arguments not supported by citation to the record ].) We also reject Hupp’s claim that increasing the trustee’s compensation to “a
ridiculous $350 /

hour ” constitutes reversible error because Sandoval is in collusion with
the homeowners ’ association to help it succeed in the Solera suit. T he court did not8

approve a rate of $350 per hour, and in any event, Hupp provides no support for his claim
of collusion

. ( Sheily , supra , 122 Cal.App.4th at pp. 826

- 827 & fn. 1 .)
U nder a head ing entitled “No Written Statement of Decision,” Hupp claims that reversal is required because the court failed to “explain or support [its] ruling.” We disagree. A party is not automatically entitled to a statement of decision every time a court makes a ruling. Ra ther, a statement of decision is required only for certain rulings and only if a party requests one , which Hupp never did . (Code Civ. Proc., § 632 [ when there has been a “ trial of a question of fact,” the court must issue “a statement of decision explaini ng the factual and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party” ]; see also Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 623

- 624 [“The requirement of a

w ritten statement of decision generally does not apply to an order on a motion, even if the motion involves an evidentiary hearing and even if the order is appealable ” ].) Moreover, Hupp cites no authority for his claim that the probate court was otherwise required to state the “legal analysis” on which the court’s ruling was based, and we are aware of

none . “‘[A]n appellant must do more than assert error and leave it to the appellate court
to search the record and the law books to test his claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record.’” ( Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 162 ( Ribakoff ) .) That rule applies to self

- represented li tigants like Hupp. ( Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Huang v. Hanks (2018) 23 Cal.App.5th 179, 183 & fn. 1.)9

Next , Hupp argues that his ability to pursue his appeal was impeded by his
incarceration and that appellate counsel should have been ap pointed for him “ at trust
expense . ” Specifically, he claims that he had “no way to research case or statutory law ”
and that he lacked access to the appellate record because “the jail facility destroyed ” his copy and this court “failed to secure new copies” for him

. We are not persuaded

. T he
trust does not authorize the hiring of counsel for Hupp at the trust’s expense

. And as we explained in our August 2022 order denying Hupp’s multiple requests for appointment of appellate counsel, Hupp has no co nstitutional right to appointed counsel in this case because he was not sued in this case (among other reasons)

. ( Payne v. Superior Court (1976) 17 Ca l.3d 908, 919, 924; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 793.) As
for Hupp’s claim of inadequate resources , his filings in this case and in his other appeals currently pending before us contradict his assertion that he is unable to conduct legal
research while incarcerated.
R egarding the record, Hupp’s uncorroborated assertion that he lacked adequate access to the transcripts has no tendency to carry his burden of showing that the order he challeng es on appeal was erroneous or that any error in it was prejudicial. ( Denham , supra , 2 Cal.3d at p. 564 ; Ribakoff , supra , 27 Cal.App.5th at p. 162 .) First, one of Hupp’s own filing s negates his claim of prejudice

. O n May 6, 2022, Hupp filed a motion requesting that we provide him with replacement copies of the reporter’s transcript and
the clerk’s transcript. His motion stated that the only reason he needed access to the reporter’s transcript was to “ v erify as a fact ” that the trial court allowed two attorneys10

representing the homeowners’ association in the Solera suit to appear at the hearing on Sandoval’s petition

. His motion also stated that the only reason he needed the clerk’s transcript was to prove that a minute order dated January 26, 2021 “was never served on [him] .” Rather than show that his lack of access to the transcripts prejudiced his appeal,
those statements demonstrate that Hupp would have used the transcripts to make
irrelevant arguments that have no bearing on the merits of the challenged order.
Second , the record does not indicate that Hupp diligently pursued any available
remedies for his alle ged lack of access to the transcripts, or that the trial court or this court committed error by failing to facilitate greater access to those transcripts. O n May 24, 2022, we denied Hupp’s May 6 motion , stating that he should “follow the procedures
of the appropriate correctional institutions in order to retrieve his transcripts.” On August 11, 2022 , Hupp filed a motion for appointment of counsel in which he raised the missing transcripts issue again, stating that jail staff had taken his files and “appar ently disposed of them” and that he had filed numerous “grievances over his ‘missing’ papers and supplies

. ” On August 23, 2022, we denied that motion , explaining that Hupp was not entitled to appointed counsel and reiterating that he should follow the cor rectional facility’s administrative procedures for requesting access to his documents “or file a petition for writ of mandate if that fails.” In the following months, Hupp made numerous motions and requests, but he never again asked us for replacement cop ies of the transcripts, informed us of his efforts to obtain copies, or explained why those efforts11

were unsuccessful

. For all of these reasons, Hupp has not shown that lack of access to
the record prejudiced his ability to prosecute this appeal. Finally, Hupp requests that we take judicial notice of two matters

— a case that he describes as “DCA case Hupp v. Solera Oak Valley Greens Assoc. et al, case E073103”
and a lawsuit against Solera that he claims to have “lodged” in the Riverside County Superior Cour t on July 10, 2020. We deny the request because Hupp failed to state why
th o se matters are relevant to th is appeal and whether they were presented to the trial court, as req uired by the California Rules of Court . (Cal. Rules of Court, rule 8.252(a)(2).) Putting aside Hupp’s arguments, we have reviewed the augmented record on appeal and see no arguable grounds for reversal. Shiozaki and Ryder selected Sandoval as trustee, as expressly authorized by the trust instrument. Sandoval sought to s ell the real property owned by the trust, to use the proceeds to settle the estate’s debts and litigation, and to use any remaining funds to purchase a residence for Hupp and provide
him with monthly distributions. All of that is consistent with the terms of the trust. The

trust requires the trustee to “pay any outstanding claims and expenses” on behalf of the estate, and the trust authorizes the trustee to sell trust property t o pay, contest, or settle any claim against the estate, as well as to make dis cretionary distributions to Hupp.
Because the trust either required or expressly authorized Sandoval to undertake each of the proposed acts, the court acted reasonably i n approving them.12

As regards compensation, section 15680 authorizes the court to “ fix or allow greater or lesser compensation than could be allowed under the terms of the trust ” under certain circumstances, such as when “ the duties of the trustee are substantially different from those contemplated ” or “ compensation in accordance with the te rms of the trust would be inequitable or unreasonably low .” ( § 15680, subd. (b).) Rule 7.776 of the California Rules of Court provides a list of additional factors a probate court may
consider when presented with a request to increase compensation. The list includes “[a]ny unusual skill, expertise, or experience brought to the trustee ’ s work ,” the “ amount of risk and responsibility assumed by the trustee , ” and the “ charges of corporate trustees for trusts of similar size and complexity .” (Cal. Rules of C our t, rule 7.776(3), (5), (7).)
In view of th o se factors, the court did not abuse its discretion by concluding that Sandoval’s proposed fee schedule was reasonable. Sandoval submitted a verified petition explaining why the duties of administering the trust would be substantially different from
those originally contemplated, namely, managing the trust’s assets and making discretionary distributions to Hupp. According to the petition, Sandoval n ot only must
defend or settle the Solera suit (which Hupp initiated) but also must work with a hostile primary beneficiary who has already been declared a vexatious litigant and who makes
death threats when he does not get what h e wants

. Moreover, the court could reasonably
conclude that because Sandoval is a licensed attorney he has skills and experience that
will be useful in carrying out those tasks

.13

For all of these reasons , we see no arguable basis on which we could conclud e that
the trial court abused its discretion

. DISPOSITION We affirm the order granting Sandoval’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J. We concur:

MILLER Acting P. J.

RAPHAEL J.