Filed 1/31/18 Conservatorship of Souder 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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| Conservatorship of the Estate of Dorothy Souder | C082864
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JAMES TODD SOUDER, as Conservator, etc.,
Plaintiff and Respondent,
v.
RICHARD GREGORY SOUDER,
Defendant and Appellant.
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(Super. Ct. No. 34201600189170)
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James Todd Souder filed a complaint against his brother Richard Gregory Souder (Greg) alleging conversion and financial abuse of their mother Dorothy. Following trial, the trial court set aside Dorothy’s will and revocable trust based on a finding of undue influence.
Greg appeals that order, but the record on appeal does not include a transcript of any proceeding in the probate court. Accordingly, this is a judgment roll appeal in which every presumption must be in favor of the judgment. On this record, we will affirm the trial court’s order.
BACKGROUND
According to the complaint filed by James against his brother Greg, their 91-year-old mother Dorothy had dementia and Greg was her live-in caregiver. The complaint alleged Greg used his mother’s credit card for cash advances at local casinos, neglected to care for Dorothy, and arranged for his mother to sign reverse mortgage documents for her home even though she lacked the capacity to make personal and business decisions. As the conservator of Dorothy’s estate, James moved to temporarily suspend Greg’s powers as the trustee. The trial court granted the motion. Following trial, the trial court found true the allegations of undue influence and issued an order setting aside Dorothy’s will and revocable trust. The appellate record does not include a reporter’s transcript of any proceeding in the trial court or any decision notes.
DISCUSSION
While this appeal was pending, Greg asked us to take judicial notice of the following: (1) additional evidence, including two IRS billing statements and his half-sister’s “very bad morals”; (2) Evidence Code section 459; (3) his request for all Brady[1] material; (4) the complaint filed in the trial court, which is already contained in the clerk’s exhibits on appeal; and (5) a codicil to Dorothy’s trust. We deny the requests for judicial notice because the materials are unnecessary to our understanding of the case or our resolution of this appeal. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)
“The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by . . . undue influence.” (Prob. Code, § 6104.) “Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96.) The principles of undue influence are also applicable to an estate plan formalized by simultaneously executed inter vivos trusts and wills. (Ibid.)
The party challenging the judgment bears the burden to provide an adequate record on appeal to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) In a judgment roll appeal, “ ‘every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. [Citation.] The sufficiency of the evidence to support the findings is not open to review.’ ” (Estate of Kievernagel (2008) 166 Cal.App.4th 1024, 1031.)
Greg, representing himself, challenges the trial court’s “erred malicious assault upon two natural human beings stripping the Settlor of all her inalienable rights and awarding them to the bad person who was named by the Settlor not to be provided for.” Greg adds that the trial court was involved in a “racketeering scheme to take peoples [sic] estates from them in a simulated legal court process.”
Greg fails to provide sufficient argument or authority establishing that he had a right, and was denied his right, to counsel or jury trial in this case. To the extent Greg is arguing the trial court erred in setting aside Dorothy’s will and revocable trust because it improperly determined the existence of undue influence, Greg cannot prevail because he chose to proceed on a judgment roll. On this record, we must presume the trial court’s rulings are correct.
DISPOSITION
The trial court’s order is affirmed.
MAURO , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
[1] Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].
