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Filed 10/21/20 Josiah v. Jackson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

MARSHA JOSIAH, as Trustee, etc.,

Plaintiff and Respondent,

v.

ROBIN E. JACKSON,

Defendant and Appellant.

C089963

(Super. Ct. No. 

34-2017-00219410)

Robin E. Jackson (Jackson) appeals from an order removing her as a successor 

cotrustee of the Eddie Copeland Neighbors Trust (Trust) and surcharging her beneficial 

interest in the estate because she breached her fiduciary duties by using trust-owned 

property as a personal asset. We conclude that the record on appeal and Jackson’s 

briefing are inadequate to permit review. We therefore are compelled to rely on the 

presumption of correctness and affirm the judgment.
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BACKGROUND LAW

The Probate Code sets forth the duties of a trustee in administering a trust.1 

(§ 16000 et seq.; Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 888.) Those duties 

include, among others, (1) a duty of loyalty; (2) a duty of impartiality; (3) a duty to avoid 

conflicts of interest; (4) a duty to preserve trust property and make it productive; (5) a 

duty to exercise reasonable care, skill, and prudence in administering the trust; and (6) a 

duty to keep the beneficiaries of the trust reasonably informed of the administration of the 

trust. (§§ 16000-16015, 16040, subd. (a), 16060; Uzyel, supra, at p. 888.) A trustee also 

has a duty to administer the trust diligently and in good faith in accordance with the terms 

of the trust and applicable law. (Rest.3d Trusts, § 76; § 16000; O’Neal v. Stanislaus 

County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1209; Uzyel, at p. 888.) 

A trustee’s violation of any duty owed to the beneficiaries is a breach of trust. (§ 16400.)

When a trustee commits a breach of the trust, the trustee is chargeable with any 

loss or depreciation in value of the estate resulting from the breach, any profit made by 

the trustee through the breach, and any profits that would have accrued to the estate but 

for the breach. (§ 16440; Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1301.) A

broad range of remedies is available to address a trustee’s actual or threatened breach of 

trust. (Estate of Giraldin (2012) 55 Cal.4th 1058, 1068.) Those remedies include 

compelling the trustee to perform its duties, enjoining the trustee from breaching the 

trust, setting aside the trustee’s acts, reducing or denying the trustee’s compensation, 

removing the trustee, and “compel[ing] the trustee to redress a breach of trust by payment 

of money or otherwise.” (§§ 15642, 16420, 17200.) The reference to “ ‘payment of 

money’ ” is comprehensive and includes liability that might be characterized as a 

surcharge to be satisfied from the trustee’s distributive share of the estate. (Estate of 

1 Undesignated statutory references are to the Probate Code.
3

Giraldin, supra, 55 Cal.4th at p. 1068; Chatard v. Oveross (2009) 179 Cal.App.4th 1098, 

1105-1106, 1114; see also § 1300.)

A trial court has wide discretion to select the appropriate remedy for a trustee’s 

breach of duty. (§§ 16440, subd. (b), 16442, 17206; Estate of Gump (1991) 

1 Cal.App.4th 582, 610; see also Estate of Gilmaker (1962) 57 Cal.2d 627, 633 [removal 

is discretionary].) We defer to a trial court’s factual findings so long as they are 

supported by substantial evidence, and determine whether, under those facts, the court 

abused its discretion. (Estate of Bonaccorsi (1999) 69 Cal.App.4th 462, 471-472

[surcharge order reviewed for abuse of discretion]; Estate of Fain (1999) 75 Cal.App.4th 

973, 991 [factual findings reviewed for substantial evidence]; Cahill v. San Diego Gas & 

Electric Co. (2011) 194 Cal.App.4th 939, 957 [discussing abuse of discretion standard].)

FACTUAL AND PROCEDURAL BACKGROUND

In January 2009, Eddie Copeland Neighbors (the Settlor) created the Trust for the 

benefit of her two daughters, Jackson and Marsha Josiah (Josiah), who were to share 

equally in her estate. The principal asset of the Trust was the Settlor’s residential home

in Sacramento (the home), which was transferred to the Trust. 

In July 2010, around the time that the Settlor was placed in a long-term care 

facility, Jackson and her husband began living in the home. 

In June 2015, the Settlor passed away and Jackson and Josiah became the 

successor cotrustees of the Trust. Shortly thereafter, in August 2015, Jackson recorded a 

grant deed transferring title of the home from the Trust to herself and her husband. 

In September 2017, Josiah filed a petition alleging that Jackson engaged in selfdealing and breached her fiduciary duties by transferring title to the home and by residing 

in it without paying rent to the Trust. Josiah sought, among other relief, an accounting of 

the Trust’s assets, an order removing Jackson as a successor cotrustee, an order requiring 

that the home’s title be returned to the Trust, an order requiring Jackson and her husband 
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to pay rent for the period during which they resided in the home after the Settlor’s death, 

and an order allowing Josiah to sell the home. Jackson opposed the petition. 

Trial on the petition commenced November 29, 2018. Josiah was represented by 

legal counsel and Jackson appeared in propria persona. After hearing testimony from 

Jackson, Josiah, and an appraiser called to address the fair rental value of the home, the 

court found the home to be a Trust asset. The court rejected Jackson’s claim that there 

was an agreement to allow Jackson to transfer title of the home from the Trust to Jackson 

and her husband. The court ordered that title be returned to the Trust, and continued the 

remainder of the trial to March 22, 2019. The court advised the parties that the remainder 

of the trial would focus on settling the Trust’s accounts and the propriety of a surcharge 

order for Jackson’s breach of duty to the Trust. The court ordered the parties to meet and 

confer in advance of a status conference set for February 19, 2019. 

At the February 19 status conference, which was not reported, the court 

determined that Jackson was unwilling to cooperate in relation to the appraisal of the 

home or the correction to the home’s title. The court ordered that Jackson be suspended 

as a cotrustee, that the home immediately be retitled in the name of the Trust, and that an 

appraisal of the home be completed by March 12, 2019. When Jackson refused to sign a 

grant deed transferring title back to the Trust, the court granted an ex parte application 

authorizing the clerk to sign the deed as an elisor.

On March 22, 2019, trial resumed with the court focusing on the appraised value 

of the home, the fair rental value of the home during Jackson’s occupancy, and any 

credits to which Jackson might be entitled for paying the home’s mortgage, taxes, or

other expenses benefitting the Trust. Josiah presented documentary evidence regarding 

the appraised and fair rental values of the home. 

The court found that Jackson failed to present any evidence to support her claims 

that she paid expenses benefitting the Trust. However, the court agreed to give Jackson a 
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limited amount of additional time to submit documentary evidence. Jackson timely filed 

a responsive declaration.2 

On April 22, 2019, the court issued a tentative ruling, to which objections were 

filed. The court heard additional argument related to the objections on June 7, 2019. The 

court then entered a final order on June 25, 2019. The court’s order provides that (1) the 

home is an asset of the Trust; (2) Jackson owes $79,650 for the fair rental value of the 

home for the period from July 1, 2015, through March 31, 2019; (3) Jackson is entitled to 

a credit (offset) of $73,921.43 toward the fair rental value for mortgage payments, taxes, 

and other expenses she paid with her personal funds; and (4) as long as Jackson continues 

to occupy the home, fair market rent (less any offsetting credits) shall continue to 

accrue.3 The court ordered Jackson removed as a successor cotrustee, but denied Josiah’s 

request to require Jackson to vacate the home so that it could be sold. Jackson filed a 

notice of appeal on June 28, 2019. 

DISCUSSION

On appeal, Jackson challenges the trial court’s implied finding that she breached

her fiduciary duties and engaged in self-dealing by transferring title of the home from the 

Trust to herself (and her husband) and occupying the home for several years without 

paying rent to the Trust. Although Jackson’s brief is difficult to follow, the gravamen of 

her claim appears to be that the evidence does not support a finding that her conduct 

2 The 23rd Declaration is not included in the record on appeal. Although Jackson 

complains that many documents listed in the docket were not included in the record on 

appeal, it appears the documents are missing because she omitted them from her notice 

designating the record on appeal. 

3

Jackson characterizes the court’s order as holding her liable for personal damages 

to Josiah, but we construe the order as imposing a surcharge on Jackson for the harm she 

caused to the Trust itself. (See Williamson v. Brooks, supra, 7 Cal.App.5th at p. 1301; 

Chatard v. Oveross, supra, 179 Cal.App.4th at p. 1106.)
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breached any fiduciary duties or caused any personal damages to Josiah. We conclude 

that Jackson has forfeited her claims by filing an inadequate brief and record.

I

Inadequacy of the Record and Appellant’s Brief

“ ‘ “A judgment or order of the [trial] court is presumed correct. All intendments 

and presumptions are indulged to support it on matters as to which the record is 

silent . . . .” . . . [Citation.]’ [Citation.]” (Osgood v. Landon (2005) 127 Cal.App.4th 

425, 435, italics omitted.) We will not reverse a judgment or order unless the appellant 

affirmatively demonstrates error by an adequate record. (Ibid.) “ ‘A necessary corollary 

to this rule is that if the record is inadequate for meaningful review, the appellant defaults 

and the decision of the trial court should be affirmed.’ [Citations.]” (Gee v. American 

Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Rancho Santa Fe Assn. v. 

Dolan-King (2004) 115 Cal.App.4th 28, 46.)

The record here is plainly inadequate as it does not include a complete record of 

the evidence presented at trial. Although we have a reporter’s transcript for the first day 

of trial, Jackson has not provided a reporter’s transcript or any adequate substitute for the 

second day of trial. As a result, we do not know what evidence was received and 

considered by the court on the second day of trial, including whatever “documentary 

evidence” was presented by Josiah. 

Also missing from the record is documentary evidence on which the trial court 

explicitly relied in reaching its decision. In its decision, the trial court described 

Jackson’s “23rd Declaration” as the basis for its calculation of the credit given to Jackson 

for paying expenses on behalf of the Trust. But Jackson’s 23rd Declaration is not part of 

the record on appeal. Thus, we are prevented from reviewing the court’s calculations of 

the offset.
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The record also omits most of the opposing party’s pleadings and declarations, 

such as Josiah’s objection to the court’s tentative decision.4 

As we recognized in Osgood v. Landon, supra, 127 Cal.App.4th 425, “ ‘a record is 

inadequate . . . if the appellant predicates error only on the part of the record he [or she] 

provides the trial court, but ignores or does not present . . . portions of the proceedings 

below which may provide grounds upon which the decision of the trial court could be 

affirmed.’ ” (Id. at p. 435, quoting Uniroyal Chemical Co. v. American Vanguard Corp.

(1988) 203 Cal.App.3d 285, 302; Estate of Fain, supra, 75 Cal.App.4th at p. 992.) 

Without an adequate record to overcome the presumption that the court’s ruling was 

correct, we must affirm. 

In addition to Jackson’s failure to provide an adequate record, her briefing also is 

woefully deficient. To demonstrate error, “ ‘an 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 [or 

her] claim.’ ” (Flores v. Department of Corrections & Rehabilitation (2014) 224 

Cal.App.4th 199, 204.) “ ‘It is not our place to construct theories or arguments to 

undermine the judgment and defeat the presumption of correctness.’ [Citation.]” (Ibid.) 

An appellant must demonstrate error by presenting reasoned argument along with 

specific citations to the record and supporting legal authority. (In re S.C. (2006) 138 

Cal.App.4th 396, 408.) “When a point is asserted without argument and authority for the 

proposition, ‘it is deemed to be without foundation and requires no discussion by the 

reviewing court.’ [Citations.]” (Ibid.) 

4 On our own motion, we take judicial notice of the trial court’s online register of 

actions, available at <https://services.saccourt.ca.gov/PublicCaseAccess/Probate> [as of 

Oct. 21, 2020], archived at <https://perma.cc/57RB-9NQ9>. (Evid. Code, §§ 452, subd. 

(d), 459.)
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Under the California Rules of Court, appellate briefs are required to state each 

point under a separate heading or subheading, which summarizes the point. (Cal. Rules 

of Court, rule 8.204(a)(1)(B).) Where an appellate brief fails to include proper headings, 

the contentions need not be considered. (Heavenly Valley v. El Dorado County Bd. of 

Equalization (2000) 84 Cal.App.4th 1323, 1346.) 

When a finding of fact is attacked on the ground that there is insufficient evidence 

to sustain it, the appellant is required to set forth in the brief all of the material evidence 

on the point and not merely the evidence favorable to the appellant. (Foreman & Clark 

Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Garlock Sealing Technologies, LLC v. NAK 

Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951.) Unless this is done, the 

error is deemed to be forfeited. (Ibid.)

Jackson has failed to comply with these rules in her appellate brief.5 Her brief 

makes numerous assertions of law and fact that are not supported by citations to any 

authority or facts in the record. 

Where Jackson cites legal principles, she generally fails to explain how they apply 

to the facts of this case. For example, she repeatedly refers to the due process clause in 

her statement of facts, but never discusses it in the argument portion of her brief. 

Similarly, she cites section 16060, but does not explain how that statute relates to the trial 

court’s decision in this case. 

Her brief refers to laches and the statute of limitations, but she did not include 

either defense in her argument headings, and her discussion of them is conclusory, 

disjointed, and devoid of meaningful legal analysis. She also makes no attempt to show 

that the laches defense was raised in the trial court.

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 (Kaufman & Broad Communities, 

5

Jackson did not file a reply brief. 

6 Unlike the laches defense, Jackson cites to pages in the record where she allegedly 

raised a statute of limitations defense (albeit under § 16061.7 rather than § 16061.8). But 
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Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226 [failure to raise 

claim in trial court forfeits it on appeal]; City of Oakland v. Public Employees’

Retirement System (2002) 95 Cal.App.4th 29, 52-53 [laches cannot be raised for first time 

on appeal].) 

Jackson challenges the sufficiency of the evidence to support a finding that she 

breached her fiduciary duties, but she fails to provide a fair summary of the material 

evidence bearing on that issue, discussing only evidence that is favorable to her position 

and virtually ignoring the evidence to the contrary, such as Josiah’s contradictory trial 

testimony. 

We are mindful that Jackson appears in this court without counsel, but that does 

not exempt her from the rules governing appeals. The law affords self-represented 

litigants “ ‘the same, but no greater consideration than other litigants and attorneys.’ ” 

(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Elena S. v. Kroutik (2016) 247 

Cal.App.4th 570, 574.)

Given the deficiencies of Jackson’s brief and the inadequacies of the appellate 

record, we are compelled to conclude that Jackson has forfeited whatever contentions she 

was attempting to assert on appeal. 

even if Jackson preserved that claim for appeal by briefly referring to it in one of her 

declarations, we fail to see how the cited statute has any application to this case, which 

involved a petition to enforce the Trust, not to contest or revoke it. (Yeh v. Tai (2017) 18 

Cal.App.5th 953, 967; see also § 21310, subd. (b)(5).)
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DISPOSITION

The trial court’s order is affirmed. Each party shall bear its own costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(5).) 

 KRAUSE , J.

We concur:

 BLEASE , Acting P. J.

 HOCH , J.