Filed 10 / 3 / 22 Conde v. Gi bbs CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

H. VICTOR COND É

,

Plaintiff and Appellant

,

v.

MICHELE GIBBS et al.

,

Defendant s and Respondents

. 2d Crim. No. B 314567 (Super. Ct. No. 17PR0046 ) ( San Luis Obispo County)

H. Victor Cond é appeals the trial court’s order surcharging
him $25 ,194 for unsupported disbursements and dis allowed fees
he claimed to have incurred as trustee of a family t rust. Appellant contends th at he offered sufficient evidence to
subst antiate the disallowed fees and that the court misapplied
the law. We conclude that appellant has forfeited his claims by failing to p rovide this court with an adequate recor d and failing2

to comply with rules 8.204 (a)(1)(B) and 8.204 (a)(1)(C) of the
California Rules of Court. 1 Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY
In 2001, Robert Glen Gibbs established the Gibbs Family American Property Trust (the t rust). Although Gibbs owned property and other asse ts in France, the trust was funded with stock worth approximately $ 590,000 and a mutual fund account with an approximate balance of $ 140,000

. In October 2014 , due to Gibbs’s incapa city, appellant was appointed as trustee of the trust. Gibbs’s daughters , respondents
Michele Gibbs and Julie Gibbs, beca me sole beneficiaries of the

trust in 2015 after Gibbs died and his wife disclaimed any
interest in the trust. After ap pellant filed his first account and
report indicating that he had received more than $ 50,000 in

trustee

- related disbursements and fees from the trust, which included claimed expenses for several trips he took to France to interview Gibbs’s wife, respondents objected to certain expenditures (including all of the expenditures related to Cond é ’s trips to France) and the overall amount of fees charged

. O n December 13, 2017

, following a lengthy evidentiary
hearin g the trial court issued a detailed ruling in which it disallowed and surcharged appellant a total of $ 25,194

, consisting of “$ 12, 56 4 for unsupported dis bursements in his
account and $12,630 for disallowed trustee fees.” The court also
order ed respondents to prepare a judgment on the court’s ruling. Respondents, who were no longer represented by counsel, sent the court a prop osed judgment in February 2018. The document was rejecte d because it did not comply with the local

1 All further rule references are to the California Rules of Court.3

r ules and contained formatting errors. The rejected document

w as placed in a court box for pickup because no self

- address ed and stamped envelope was included, b ut the document was never picked up.
In June 2021 , appellant moved to dismiss the c ourt’s order due to respondent’s failure to timely file the judgment or, in the alternative, enter the proposed judgment submitted by him in conjunction with his motion to dismiss

. Respondents filed a non

opposition to entering appellant’s proposed judgment , noting that they had no id ea that their proposed judgment had been rejected by the court. The court denied the motion to dismiss and filed the judgment on July 27 , 2021. Appellant filed a timely notice of appeal. 2
DISCUSSION Appellant contends the challenged order is erroneous. We agree with respondents that appellant has forfeited his claims by failing to provide an adequate record or comply with the briefing requirements set forth in rules 8.204(a)(1)(B) and 8.204(a)(1)(C).
It is well

- settled that “[a]ppealed judgments and orders are presumed correct, and error must be affirmatively shown. [Citation.] ” ( Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) As the party challengi ng the

court ’s presumably correct findings and rulings, appellant is

2 We reject respondents’ contention that the appeal is untimely. Although the court issued its order on December 13, 2017, the judgment was not actually entered until July 27, 2021. Until a judgment was entered, appellant had no right

— much less an obligat ion

— to file a notice of appeal from the court’s order. ( Rule 8.104.)4

required “to provide an adequate record to assess error.” ( Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “In numerous situations, appellate courts have refused to
reach the merits of an appellant ’ s claims because no reporter ’ s transcript of a pertinent proceeding or a suitable substitute was provided.” (

Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186.) Here, appellant challenges a ruling issued
follow ing a lengthy evidentiary hearing at which the court heard and considered extensive testimony. Appellant, however, did not designate the reporter’s transcript of those hearings for inclusion in the record on appeal. Appellant’s opening brief also fails to comply with rules 8.204(a)(1)(B) and 8.204(a)(1)(C). “ A violation of the rules of court may result in the striking of the offending document, the waiver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal.” ( Del Rea l v. City of Riverside (2002) 95 Cal.App.4th 761, 768 .) Under rule 8.204( a)(1)(B), the appellant’s opening brief was required to “[s]tate each point, under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority. ” Under rule 8.204 (a)(1)(C), appellant was also required to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” As respondents note, appellant’s brief lacks adequate case authority and is replete with factual and legal assertions that are not supported by any citation to the record or the law. Moreover, appellant declined the opportunity to file a reply brief or otherwise attempt to address these issues

. We conclude that appellant has forfeited his claims on appeal

. ( Foust v. San Jose5

Construction Co., Inc.

, supra , 198 Cal.App.4th at p. 186 ; Del Real v. City of Riverside

, supra , 95 Cal.App.4th at p. 768 .)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal

. NOT TO BE PUBLISHED.

PERREN, J. *

We concur:

GILBERT , P.J.

YEGAN , J.

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Char les S . Crandall , Judge
Tana L. Coates , Judge Superior Court County of San Luis Obispo

______________________________ Alan Leigh Armstrong for Plaintiff and Appellant.
Tardiff & Saldo Law Offices

, Dustin M. Tardiff

, for
Defendants and Respondent s

.