Filed 10/3/22 Conde v. Gibbs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

H. VICTOR CONDÉ,

 Plaintiff and Appellant,

v.

MICHELE GIBBS et al.,

 Defendants and Respondents.

2d Crim. No. B314567

(Super. Ct. No. 17PR0046)

(San Luis Obispo County)

H. Victor Condé appeals the trial court’s order surcharging 

him $25,194 for unsupported disbursements and disallowed fees 

he claimed to have incurred as trustee of a family trust. 

Appellant contends that he offered sufficient evidence to 

substantiate the disallowed fees and that the court misapplied 

the law. We conclude that appellant has forfeited his claims by 

failing to provide this court with an adequate record and failing 
2

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 trust). Although Gibbs owned 

property and other assets 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 incapacity, appellant was 

appointed as trustee of the trust. Gibbs’s daughters, respondents 

Michele Gibbs and Julie Gibbs, became sole beneficiaries of the 

trust in 2015 after Gibbs died and his wife disclaimed any 

interest in the trust. After appellant 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 Condé’s 

trips to France) and the overall amount of fees charged. 

On December 13, 2017, following a lengthy evidentiary 

hearing the trial court issued a detailed ruling in which it 

disallowed and surcharged appellant a total of $25,194, 

consisting of “$12,564 for unsupported disbursements in his 

account and $12,630 for disallowed trustee fees.” The court also 

ordered respondents to prepare a judgment on the court’s ruling. 

Respondents, who were no longer represented by counsel, 

sent the court a proposed judgment in February 2018. The 

document was rejected because it did not comply with the local 

1 All further rule references are to the California Rules of 

Court.
3

rules and contained formatting errors. The rejected document 

was placed in a court box for pickup because no self-addressed 

and stamped envelope was included, but the document was never 

picked up. 

In June 2021, appellant moved to dismiss the court’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 nonopposition to entering appellant’s proposed judgment, noting that 

they had no idea 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 challenging 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 obligation—to file a notice of appeal from the court’s order. 

(Rule 8.104.) 

 
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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 

following 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 Real 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 Jose 
5

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.
Charles 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 Respondents.