Filed 8/25/23 Sutton v. Clark CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DAVID SUTTON,

Plaintiff and Appellant,

v.

GEORGE D. CLARK, as Trustee, etc.,

Defendant and Respondent.

B322867

(Los Angeles County

Super. Ct. No. 16STPB03303)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael Small, Judge. Affirmed.

David Sutton, in pro. per., for Plaintiff and Appellant.

Law Office of Cecil R. McNab and Cecil R. McNab for 

Defendant and Respondent.

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David Sutton appeals from a trial court order denying his 

trust petition filed pursuant to Probate Code section 17200

(section 17200 petition). Based on the limited record Sutton has 

provided on appeal, it appears that Sutton failed to respond to 

trustee George Clark’s special interrogatories requesting that 

Sutton identify witnesses and documents relevant to the claims 

raised in his petition. Clark accordingly filed a motion in limine 

seeking to exclude witnesses or documents Sutton might present 

at trial. The trial court granted the motion in limine, then denied 

the trust petition. We affirm the trial court order.

FACTUAL AND PROCEDURAL BACKGROUND

Our review in this case is severely constrained by the 

limited record provided on appeal, which consists of a trial court 

docket, a motion and supplemental motion in limine, a one-page 

opposition to the motion in limine, two trial court orders, and the 

notice of appeal and designation of the record on appeal. From 

this record, we discern the following. In 2016, Sutton filed a 

petition to determine the existence of a trust. In 2019, he filed a 

subsequent petition for removal of trustee.

In June 2021, the respondent and trustee, Clark, served a 

set of special interrogatories on Sutton. The interrogatories 

demanded that Sutton identify witnesses and documents 

supporting the allegations in his petition. It appears from the 

interrogatories that Sutton alleged, among other things, that 

Clark improperly transferred trust property to himself; he 

became trustee by defrauding the settlor; he wrongfully took or 

disposed of trust assets; and he violated his duties as trustee.

In April 2022, Clark filed a motion in limine asserting 

Sutton willfully failed to respond to the interrogatories and 

seeking an order prohibiting Sutton from “calling any witnesses 
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or presenting any document requested in the Special 

Interrogatories.” The motion indicated Sutton refused to meet 

and confer with Clark’s lawyer, and that Sutton’s failure to 

respond to the interrogatories prevented Clark from conducting 

any depositions or examining any evidence before trial.

Sutton filed a one-page opposition to the motion stating: 

“Pertinent documents for proving validity of trust violations need 

to be allowed into evidence.”

At a May 2022 proceeding, the trial court heard argument 

and granted the motion in limine.1 In July 2022, the trial court 

denied Sutton’s section 17200 petition with prejudice, finding 

“insufficient evidence has been provided to grant the matter on 

calendar.” Sutton timely appealed.2

DISCUSSION

It is a fundamental rule of appellate review that an 

appealed judgment or order is presumed correct, and error must 

be affirmatively shown. (Jameson v. Desta (2018) 5 Cal.5th 594, 

609 (Jameson); Denham v. Superior Court (1970) 2 Cal.3d 557, 

564.) “ ‘In the absence of a contrary showing in the record, all 

presumptions in favor of the trial court’s action will be made by 

the appellate court.’ ” (Jameson, at p. 609.) To overcome this 

1 A minute order from the date of the hearing states the 

court granted the motion “for the reasons stated on the record.” 

The record on appeal does not include a reporter’s transcript from 

the hearing, or an agreed upon or settled statement summarizing 

the proceedings.

2 “ ‘[T]he Probate Code permits an appeal to be taken from 

any final order under Probate Code section 17200 et seq. ...’ 

[Citation.]” (Boys & Girls Club of Petaluma v. Walsh (2008) 169 

Cal.App.4th 1049, 1057.)
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presumption, the appellant has the burden of providing the 

appellate court with an adequate record demonstrating error. 

(Ibid.; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “ ‘Failure 

to provide an adequate record on an issue requires that the issue 

be resolved against [the appellant].’ [Citation.]” (Jameson, at 

p. 609.)

It is also the appellant’s burden to provide reasoned 

argument and citations to relevant legal authority to support 

that argument. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.) 

“ ‘[O]n appeal “the party asserting trial court error may not ... 

rest on the bare assertion of error but must present argument 

and legal authority on each point raised. [Citation.]”

[Citation.]’ ” (Hernandez v. First Student, Inc. (2019) 37 

Cal.App.5th 270, 277.) Accordingly, “[w]hen an appellant fails to 

raise a point, or asserts it but fails to support it with reasoned 

argument and citations to authority, we treat the point as 

forfeited.” (Delta Stewardship Council Cases (2020) 48

Cal.App.5th 1014, 1075 (Delta Stewardship Council Cases).) 

These “same rules apply to a party appearing in propria persona 

as to any other party.” (Flores v. Department of Corrections & 

Rehabilitation (2014) 224 Cal.App.4th 199, 205 (Flores).)

Here, Sutton argues the trial court abused its discretion in 

dismissing his petition. He appears to contend that the court 

should have excluded the evidence he failed to produce in 

discovery, while still allowing him to proceed to trial. However, 

the limited record indicates that the trial court took two separate 

actions. First, the trial court granted the motion in limine, thus 

excluding evidence that Sutton failed to provide in response to 

the interrogatories. Second, the trial court concluded Sutton’s 
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evidence, if any, was insufficient to establish the claims in his 

petition.

Sutton has failed to provide any reasoned argument to 

support the claim that the trial court erred in denying the 

section 17200 petition for insufficient evidence. Nor does he 

argue that the trial court erred in granting the motion in limine. 

“It is not our place to construct theories or arguments 

to undermine the judgment and defeat the presumption of 

correctness.” (Delta Stewardship Council Cases, supra, 48

Cal.App.5th at p. 1075.) Indeed, “ ‘[f]ailure of an appellant in a 

civil action to articulate any pertinent or intelligible legal 

argument in an opening brief may, in the discretion of the court, 

be deemed an abandonment of the appeal justifying dismissal.’ 

[Citation.]” (Flores, supra, 224 Cal.App.4th at p. 205.) Sutton 

contends the trial court order dismissing his petition was 

prejudicial, but he has not offered a cognizable argument to 

explain how the trial court abused its discretion in granting the 

motion in limine or erred in dismissing the petition for 

insufficient evidence. We must therefore affirm the trial court 

order.
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DISPOSITION

The trial court order is affirmed. Respondent to recover his 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.