1 Filed 7/17/13 Byrnes v. Fischer CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

ANTHONY BYRNES, as Trustee, etc., Plaintiff and Respondent,

v. WAYNE FISCHER,

Defendant and Appellant;

ANDREA SULLIVAN et al., Defendants and Respondents. A132562

(Sonoma County Super. Ct. No. SPR 78640)

Wayne Fischer, representing himself, appeal s from an order filed on June 8, 2011, which, among other things, settled the first and final account of successor trustee Anthony Byrnes. He raises a number of contentions throughout his opening brief, apparently claiming that each one warrants re versal of the order. We disagree, and accordingly, affirm.

FACTS A. Background On or about November 10, 1988, the 1988 Fischer Living Trust was created by

Harold Fischer and Alice Fisc her; their four children (Wa yne Fischer, Juel Bortolussi, Kim Fischer, and Andrea Sullivan) were named be neficiaries of the trust. Following the death of Harold and Alice Fischer, their son Wayne Fischer became the sole trustee.2 On August 11, 2006, benefi ciary Juel Bortolussi file d a petition to remove Wayne Fischer as trustee, for the appointment of a new trustee, and for an account. Similarly, in April 2007, beneficiary Andrea Sullivan f iled a petition to remove Wayne Fischer as trustee, and for the appointment of a new truste e. Wayne Fischer, as trustee, presented an interim account and report of the administrati on of the trust, covering the period from November 13, 2004 to Decembe r 31, 2007. Beneficiaries Ju el Bortolussi and Andrea Sullivan filed objections and am ended objections to that a ccount, which were opposed by Wayne Fischer. To resolve their dispute, a ll of the beneficiarie s agreed to binding

arbitration.

The arbitrator William M. Andrews issued several orders in 2008 relating to the trust. On August 7, 2008, Wayne Fische r’s powers as trustee were suspended, and Anthony Byrnes, as temporary su ccessor trustee, formally took control of the trust’s bank accounts on or about October 21, 2008. The superior court confirmed Byrnes’ appointment as temporary successor trustee. Wayne Fischer filed another interim trust account for the period January 1, 2008 through October 21, 2 008. After several hearings,

the arbitrator issued an award and order in September 2010, resolving the objections to both trust accounts filed by Wayn e Fischer as trustee. On January 19, 2011, the superior court issued a judgment confirming the arbitrator’s award. B. Current Proceeding On or about April 19, 2011, Anthony By rnes filed a first and final account as trustee, seeking approval of his account for the period commencing October 22, 2008, and ending February 28, 2011, instructions rega rding distribution of certain trust property and any claim asserted by Laur ie Walker, court acceptance of his resignation as trustee, and court appointment of Don R. Hughes, as successor trustee, to conclude the

administration of the trust. On May 3, 2011, Byrnes file d an amendment to his trust account to reflect a payment that was owed and paid to beneficiary Juel Bortolussi. On June 2, 2011, Wayne Fischer filed an objec tion to Byrnes’s account on the grounds that it was incomplete and contained several omissions.3 At the superior court hearing on June 8, 2011, Byrnes appeared by his counsel, and beneficiaries Wayne Fischer, Kim Fische r, and Andrea Sullivan, appeared on their own behalf. At the conclusion of oral argum ent, the court approv ed the trust account submitted by Byrnes. The court issued a writte n order on June 8, 2011, in which, among other things, the trust account submitted by Byrnes wa s approved. Wayne Fischer filed a timely notice of appeal. 1

DISCUSSION It is well settled that a party challengi ng an order “has th e burden of showing reversible error by an adequate record.” ( Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) We conclude the appellate re cord submitted by Wayne Fischer is insufficient to address his appellate contentions. Wayne Fischer specifically elected to pr oceed by filing an appendix and “without a reporter’s transcript of the oral proceedings in the superior court” on June 8, 2011. Although our appellate rules pe rmit an in propria persona litig ant to proceed by using a settled statement in lieu of a reporter’s transc ript (Cal. Rules of Court, rule 8.137(a)), there is no indication Wayne Fischer made the re quired application to the superior court. In his notice designating the record on appeal , he acknowledged his understanding “that without a record of the oral pr oceedings in the superior court, [this court] will not be able to consider what was said during those proc eedings in determining whether an error was made in the superior court proceedings.” Additionally, the appendix consists of only portions of numerous documents. For exam ple, the September 2010 arbitration order contains only four pages of what is clearl y a multiple-page docume nt. Wayne Fischer’s petition seeking court a pproval of an interim trust accoun t for the period from January 1, 2008 through October 21, 2008, includes the a ttachment of that acco unt to that petition, but the documents in the appe ndix following that petition app ear to be the schedules of

1 In response to Wayne Fischer’s opening brief, Kim Fischer has filed a respondent’s brief in support of the appeal, Andrea Sullivan has filed a respondent’s brief labeled declaration opposing th e appeal, and Anthony Byrnes has filed a respondent’s brief opposing the appeal.4 receipts and disbursements for the accoun t period November 13, 2004 through December 31, 2007, and in a late r portion of the appendix there is one page labeled, “The 1988 Fischer Living Trust Notes to Financ ial Statements January 1, 2008 through October 21, 2008.” Also, Wayne Fischer ha s included in the appendix a July 27, 2011 letter he wrote to the trustee and a September 20, 2011 “notice of as sociation of counsel” sent to him by the trustee’s attorney. Howe ver, those documents cannot be considered by this court because they were not before the s uperior court when it issued its June 8, 2011 order. ( In re James V . (1979) 90 Cal.App.3d 300, 304 [an appeal “reviews the

correctness” of an order “as of the time of it s rendition, upon a reco rd of matters which were before the [superior] court for its consideration”].) Because we do not have a reporter’s transc ript or settled statement of the June 8, 2011 hearing, we do not know the basis for the superior court’s approval of the trust account submitted by Byrnes. Therefore, Wa yne Fischer’s arguments challenging the court’s ruling are not cognizable on this appe al. Also, as a court of appeal, we cannot “act upon a mere assertion of an appellant in his brief as to matters not shown by the record, and reverse” an order of the superior court. ( County of Nevada v. Phillips (1952) 111 Cal.App.2d 428, 430.) Consequently , we cannot consider Wayne Fischer’s explanation for filing a late objection or hi s request for relief based on certain alleged statements made to him by counsel for Anth ony Byrnes. We see no reason to consider further the merits of his appeal.5 DISPOSITION The June 8, 2011 order is affirmed. Anthony Byrnes and Andrea Sullivan are awarded costs on appeal.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________ Siggins, J.