Filed 12/11/17 Estate of Sconiers CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Estate of ROSIE LEE SCONIERS, Deceased.

FRANKIE FREITAS,

Petitioner and Respondent,

v.

JANETTA SCONIERS-MELIKIAN,

Objector and Appellant.

F070580

(Super. Ct. No. 07CEPR00976)


OPINION

APPEAL from an order of the Superior Court of Fresno County. M. Bruce Smith, Judge.
Janetta Sconiers-Melikian, in pro. per., for Objector and Appellant.
J. Stanley Teixeira for Petitioner and Respondent.
-ooOoo-
Previously declared a vexatious litigant, Janetta Sconiers-Melikian (Sconiers-Melikian) appeals from the probate court’s order awarding sanctions against her share of her mother’s estate for attorney fees and costs incurred by the attorney for Frankie Freitas, the estate’s executor. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2007, Frankie Freitas filed a petition for probate of the will of her late mother, Rosie Lee Sconiers. Freitas submitted a copy of the will, as the original will was lost. Her sister, Sconiers-Melikian, appearing in propria persona, filed objections to probate of the copy of the will and to allowing any of her siblings to administrate Rosie’s estate. In a declaration, Sconiers-Melikian asserted Rosie never signed the will and she had watched Rosie burn it. Sconiers-Melikian obtained an attorney, Ralston L. Courtney, who filed a substitution of attorney form in January 2008.
In April 2008, Sconiers-Melikian dismissed her contest, but not before Freitas’s attorney filed several pleadings opposing it. The trial court approved the petition for probate, reserved jurisdiction as to attorney fees, and appointed Freitas the executor of the estate. The original will was located in May 2008 and deposited with the court clerk. In October 2008, Freitas filed an inventory and appraisal, which stated the probate referee had appraised real property of the estate located at 1829 W. Church Avenue in Fresno (the property) at $175,000.
In January 2009, Freitas filed a petition to determine ownership of the property pursuant to Probate Code section 850, as Sconiers-Melikian claimed the property belonged to her based on a purported residential lease with option to purchase and a purported residential lease rental agreement. Freitas believed Sconiers-Melikian’s claim to be meritless.
In March 2009, the presiding judge of the superior court, the Honorable M. Bruce Smith, issued an order denying Sconiers-Melikian’s ex parte application to file an objection to the petition to determine ownership of the property. Judge Smith determined the objection fit the definition of litigation as set out in Code of Civil Procedure section 391.7, subdivision (d), and he could not find the litigation had merit or had not been filed for the purpose of harassment or delay.
Sconiers-Melikian filed a petition for writ of mandate in this court. In May 2009, we issued an alternative writ of mandate directing the superior court to issue appropriate directives allowing Sconiers-Melikian to file responsive pleadings in this action or show cause why a peremptory writ of mandate should not issue. We explained that the superior court could not refuse to allow Sconiers-Melikian to file responsive pleadings solely because she had been declared a vexatious litigant, and by the express terms of section 391.7, she was prohibited from filing new litigation without first obtaining leave of the presiding judge, but she was not prevented from filing responsive pleadings.
In accordance with this ruling, Judge Smith issued an order on May 21, 2009, directing the probate division to accept responsive pleadings from Sconiers-Melikian. The order added that Sconiers-Melikian still was prohibited from filing pleadings requesting affirmative relief absent authorization due to her status as a vexatious litigant, and to the extent she continued to intertwine her requests for affirmative relief with her responsive pleadings, the court would either strike them or entertain other sanctions. Having received this order, we discharged the alternative writ and denied the petition, but advised that a responsive pleading does not constitute new litigation even if it requests some relief.
Thereafter, Sconiers-Melikian filed an objection to Freitas’s petition. She also attempted to file, in propria persona, (1) a complaint for declaratory and injunctive relief, and monetary damages, against numerous persons and entities, including the estate and her siblings; (2) an ex parte application to grant her leave to file the complaint; (3) a memorandum of points and authorities in support of a peremptory challenge of Judge Smith, under section 170.6, based on her having named him as a defendant in the complaint; and (4) a “plaintiff’s brief in support of application for temporary restraining order, writ of mandate, and order to show cause for preliminary injunction and plaintiff’s brief in support of temporary restraining order and order to show cause for preliminary injunction.” The superior court marked these documents as received on September 18, 2009.
On September 23, 2009, Judge Smith issued an order denying Sconiers-Melikian’s application to file these documents because they were not responsive pleadings, but rather comprised a new proposed civil filing that was not appropriate in the probate case. Judge Smith found that to the extent Sconiers-Melikian was seeking leave to file the complaint as a new action, she had not established that the proposed action had merit or had not been filed for the purposes of harassment or delay. Judge Smith found Sconiers-Melikian’s request to disqualify him from making this determination improper and contrary to law, as section 170.6 was inapplicable to his determination.
A bench trial on Freitas’s petition began before the Honorable W. Kent Hamlin on September 23, 2009, with Sconiers-Melikian appearing through her attorney, Courtney. The following day, the trial was continued because Sconiers-Melikian was hospitalized.
Thereafter, Sconiers-Melikian filed four separate applications in this court for leave to file petitions for writ of mandate, which we assigned case numbers F058586, F058743, F058817 and F058862. We denied all of the applications. In case number F058586, we issued an order on October 8, 2009, in which we stated we had carefully reviewed the application and documents submitted in support of it, and concluded the petition had no merit. In the remaining three cases, we issued an order on November 17, 2009, in which we noted that Sconiers-Melikian purported to be represented by counsel in these matters, and concluded the prefiling order limiting both Sconiers-Melikian’s in propria persona activities, as well as filing through her attorney, was appropriate and necessary “to curb her out-of-control behavior in this probate matter.” We also concluded that Sconiers-Melikian failed to show the petitions or requests to stay the proceeding had merit.
The trial did not resume until April 26, 2010, and concluded the following day. Sconiers-Melikian continued to be represented by Courtney. The trial court issued a statement of decision on June 18, 2010. At issue was whether the property constituted an asset of the estate and the validity of certain written instruments which allegedly granted an option to Sconiers-Melikian to purchase it. The trial court found that nearly all of the evidence produced at trial pointed to the conclusion that the purported lease agreement with option to purchase was fraudulent, and the “overwhelming weight of the evidence” supported the conclusion Sconiers-Melikian could not produce the original documents because she manufactured them “in an attempt to falsely establish an ownership interest in the real property at issue.” Based on the documentary evidence and witness testimony, including expert testimony, the trial court found the documents purporting to grant and evidence an option to purchase did not exist during Rosie’s lifetime and Rosie died holding title to the subject property without ever having granted any interest in it to anyone else. Accordingly, the trial court entered judgment confirming the estate’s ownership of the property.
On June 23, 2010, Sconiers-Melikian filed an application for permission to file a notice of appeal from the June 18, 2010 order, which we assigned case number F060336. We considered the application and noted that while the documents purported to be prepared by Courtney and filed on her behalf, it was apparent they were Sconiers-Melikian’s work product. We denied the application and closed the case after concluding that Sconiers-Melikian failed to demonstrate the appeal had merit.
Sconiers-Melikian filed a second application for permission to file a notice of appeal and petition for writ of mandate with a stay of the June 18, 2010 order in this court, which we assigned case number F060451. On July 16, 2010, we issued an order stating that we had considered the application and supporting brief, and determined Sconiers-Melikian failed to demonstrate the appeal and petition had merit. Accordingly, we denied the application and closed the case.
Apparently nothing further happened in the probate matter until 2014. In November 2013, the trial court set a status hearing for January 2014 regarding the failure to file a petition for final distribution. In a January 2014 status report, Freitas stated that after the conclusion of the litigation, the other beneficiaries expressed a desire to keep the property rather than sell it. While Freitas believed this could be done, one of the beneficiaries was occupying the premises to the detriment of the others and had been served with a 60-day notice to vacate the premises. Once the eviction was complete, Freitas believed she would be ready to file the petition for final distribution.
The status hearing was continued to March 28, 2014. In a status report for that hearing, Freitas’s attorney reported that the beneficiary did not timely vacate the premises and it was necessary to initiate an unlawful detainer action. The eviction was expected to occur that week and once it did, the executor would prepare an accounting and file a petition for final distribution. The status hearing was continued to May 30. In a status report for that hearing, Freitas’s attorney stated the unlawful detainer action had been completed and he had prepared a draft of the petition for final distribution, which he hoped to review with his client and have on file before May 30. On May 30, the status hearing was continued to August 4.
On July 10, Freitas filed a “First and Final Account and Report of Executor and Petition for its Settlement, for Allowance of Statutory Commissions and for Final Distribution.” Freitas asserted, among other things, that: (1) no reasonably ascertainable creditors were found beyond those who submitted bills in the ordinary course, which were paid, and the time for filing claims had expired; (2) no creditor’s claims were filed against the estate; (3) the expenses of administration totaled $1,385; (4) the total value of the estate was $177,609.22; and (5) the assets on hand were comprised of Rosie’s 100 percent interest in the property, with a value of $175,000, and $500 in household furniture, furnishings and personal effects.
The will disposed of Rosie’s estate equally to her ten children and her stepson, but provided that if any child or her stepson predeceased her, his or her share would lapse and become part of the residue of the estate. One child predeceased Rosie, so his share lapsed and fell to the residue of the estate. Freitas proposed to distribute the estate to the remaining nine children and stepson as follows: (1) a 1/9 interest in the property to seven of the children; and (2) a 2/9 interest in the property to Freitas, as one of the children had assigned her interest in the estate to Freitas.
Because Freitas and the estate were subjected to an undue consumption of time and incurred otherwise unnecessary expenses due to Sconiers-Melikian’s will contest and her claim against the property, Freitas asserted that Sconiers-Melikian should not receive an interest in the property. As to the will contest, Sconiers-Melikian asserted she watched her mother burn the will, but the original will was later discovered and filed with the court, and the trial court reserved the right to charge Sconiers-Melikian’s share of the estate for costs and fees Freitas incurred as stated in the April 16, 2008 minute order. As to Sconiers-Melikian’s claim that the property was subject to a lease with option to purchase, the trial court concluded the purported lease was fraudulent.
Freitas asked the court, under the provisions of section 128.5 and Probate Code section 11008, to assign Sconiers-Melikian’s share of the estate to Freitas’s attorney for the costs he advanced and his fees in opposing Sconiers-Melikian’s “bad faith claims.” The attorney agreed to compromise the amounts owed to him for extraordinary services to the value of Sconiers-Melikian’s share of the estate.
In a declaration, Freitas’s attorney explained that he had incurred $40,639.58 in extraordinary fees and costs as a result of the will contest and Sconiers-Melikian’s claim against the property. The attorney stated that despite declarations from family members that Rosie told them of the will and never indicated she had destroyed it, and from the attorney who prepared the will who stated he witnessed Rosie sign it, Sconiers-Melikian filed a document in which she declared, under penalty of perjury, that she watched her mother burn a draft of an unsigned, undated and unwitnessed will. The original will, however, was found a few months later and deposited with the court. The attorney asked the court to approve $3,900 in compensation for extraordinary services in the will contest.
The attorney also stated that after the trial court concluded that the lease agreement by which Sconiers-Melikian asserted her claim to the property was fraudulent, she made “various appeals” to the Fifth District Court of Appeal and California Supreme Court to no avail. The attorney asked the court to approve $2,037.08 in costs he advanced and $34,702.50 in compensation for extraordinary services related to the property claim. The attorney agreed to compromise his fees to $17,500, which represented one-tenth of the value of the estate property subject to distribution, as he believed it was inequitable for the other beneficiaries to have the estate bear the whole amount. If the court agreed his attorney fees for defending against Sconiers-Melikian’s claims be charged against her interest in the estate, he was willing to accept a court-ordered lien for recording on the real property, secured by a one-tenth interest in the property.
Freitas asked the court to close the administration of the estate, allow the statutory compensation of $6,328.28 each to herself as executor and her attorney, and allow $17,500 to her attorney for extraordinary services and costs to be recorded as a lien on the property.
Notice of the hearing on the petition, set for August 13, was served on the parties on July 14. Sconiers-Melikian’s notice was mailed to her at an address on N. Yosemite Avenue in Fresno, as well as to her attorney Courtney.
On August 7, Sconiers-Melikian filed a document, in propria persona under the name “J.L. Melikian,” entitled “Notice of Change of Address; Beneficiary Melikian’s Objection to First and Final Account and Report of Executor and Petition for its Settlement, for Allowance of Statutory Commissions and for Final Distribution; and Request for Judicial Notice.” Sconiers-Melikian advised that she had a new address on North Broadway Plaza in Fresno, and asked the court to take judicial notice that she provided Freitas and her attorney with that address via email on February 8. Sconiers-Melikian claimed that Freitas “fraudulently set forth” her address as being on Yosemite Avenue. She asserted that Freitas failed to provide her with notice of the proceeding, and she discovered the proceeding by checking the online docket report and paying for a copy of the moving documents. Sconiers-Melikian asked the court to take judicial notice of various documents attached to the notice and objection.
A declaration from Courtney was included in the documents. He declared that he was Sconiers-Melikian’s attorney of record from January 24, 2008 through September 18, 2009, when he executed a notice of substitution of attorney, which the clerk filed. The document, dated September 18, 2009 and entitled “Notice of Substitution of Counsel” is on pleading paper and states that Sconiers-Melikian was substituting herself as attorney of record in Courtney’s place. Sconiers-Melikian asserted that Judge Smith or Judge Hamlin refused to recognize the filed notice of substitution of attorney and denied “her access to the attorney who was compelled to represent her during the trial after her removal ….”
Sconiers-Melikian cited various “facts” that she asserted were sufficient to support her contention that Freitas was not entitled to an award of sanctions, including that Freitas did not meet the mandated requirements of sections 128.5 and 128.7 to obtain sanctions.
The hearing on the petition took place on August 13 before Judge Smith; the proceedings were not recorded. The minute order of the hearing indicates that Freitas’s attorney and attorney Wendy Aguilar made appearances, but no other party was present. The minute order states: “Attorney Aguilar makes a request for continuance on behalf of J.L. Melikian (aka Janetta Sconiers). The Court denies the request for continuance. Attorney Aguilar is not the attorney of record. Ralston Courtney remains the attorney of record.” The minute order further states that Judge Smith granted the petition and signed the order.
The order approved the petition, allowed Freitas $6,328.28 as executor’s compensation and authorized her to pay the same amount to her attorney as his statutory commission, and ordered Freitas’s attorney be reimbursed $17,500 for extraordinary services and costs to be secured by a lien on the property. The order further directed that the estate be distributed as set forth in the petition.
On October 9, Sconiers-Melikian filed a notice of appeal, which listed only the order entered on August 13, 2014 as the order being appealed.
DISCUSSION
Despite having listed only the August 13, 2014 order as the one being appealed in her notice of appeal, in her opening brief, Sconiers-Melikian asserts she is appealing from three trial court orders: (1) the September 23, 2009 order denying her application to file various documents and denying her request to disqualify Judge Smith; (2) the June 18, 2010 judgment that confirmed the estate’s ownership of the property; and (3) the August 13, 2014 order granting Freitas’s petition. With respect to the first two orders, she asserts we improperly denied her applications to appeal from these orders or seek peremptory writs of mandate. With respect to the August 13 order, she argues the trial court improperly imposed sanctions because Freitas failed to comply with Probate Code section 11003 and the safe harbor provision of section 128.7, subdivision (c)(1).
We have no jurisdiction to review the September 23, 2009 order and June 18, 2010 judgment, however, because the notice of appeal does not identify them as being appealed. (Cal. Rules of Court, rule 8.100(a)(1) & (a)(2) [“The notice is sufficient if it identifies the particular judgment or order being appealed.”].) This rule requires “that the notice affirmatively state, in some form, a present intention to appeal from a designated judgment or order.” (Estate of Roberson (1952) 114 Cal.App.2d 267, 269, disapproved on other grounds in Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22, fn. 1 [construing former rule 1(a)].)
While notices of appeal must be liberally construed so as to protect the right of appeal “ ‘if it is reasonably clear what appellant was trying to appeal from’ ” (Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298, 1307), liberal construction cannot supply what is not there. Unless the notice of appeal can be construed to identify an appealable judgment or order that is being challenged, the Court of Appeal lacks jurisdiction to review unspecified orders. (People v. Delaney (1955) 132 Cal.App.2d 838, 839 [appeal dismissed where notice of appeal failed to “specify any judgment or particular part thereof” from which appeal is taken]; Estate of Roberson, supra, 114 Cal.App.2d at p. 270 [rule’s clear meaning is that notice of appeal must state party’s intention to appeal “from some specified thing”].)
Both the September 23, 2009 order denying Sconiers-Melikian’s application to file certain documents and the June 18, 2010 judgment confirming the estate’s ownership of the property were appealable orders. (§ 904.1, subd. (a)(10); Prob. Code, §§ 1300, subd. (k), 850.) Sconiers-Melikian, however, did not specify those orders in her notice of appeal. Instead, she identified only the August 23, 2014 order. While notices of appeal generally must be liberally construed, we cannot “construe” the notice of appeal to include orders that were not referred to in the notice of appeal. Moreover, even if those orders were identified in the notice of appeal, any appeal from them is untimely, regardless of when notice of the orders was served on Sconiers-Melikian. (Rule 8.104(a)(C) [notice of appeal must be filed within 180 days after entry of judgment where notice of entry is not served on the appealing party].) Since an appeal from the judgment confirming the estate’s ownership in the property is untimely, the judgment is final and binding, and may not be collaterally attacked in a subsequent appeal from the final order of distribution. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5.)
Finally, Sconiers-Melikian previously sought review of these orders in this court. If she believed we erred in rejecting her prior appeals and writs, her recourse was to seek review before the California Supreme Court. She apparently did so and her requests were denied.
For these reasons, Sconiers-Melikian’s arguments regarding those orders are not cognizable in this appeal from the August 13 order.
This leaves the August 13 order. Sconiers-Melikian raises several challenges to the order which can be distilled into two main contentions: (1) that despite attempting to file a substitution of attorney form in September 2009 by which she substituted herself in place of her attorney Courtney, the trial court at the August 13 hearing refused to recognize that she had the right to represent herself at the proceeding and erred in stating that Courtney was her attorney of record; and (2) the trial court improperly imposed sanctions under section 128.5.
As to the first contention, the record shows that Sconiers-Melikian did not personally appear at the August 13 hearing. Instead, attorney Aguilar appeared and requested a continuance of the hearing on Sconiers-Melikian’s behalf. Aguilar, however, was not Sconiers-Melikian’s attorney of record. Instead, Courtney remained her attorney of record. While Sconiers-Melikian attempted to represent herself in September 2009 by filing a substitution of attorney form, the trial court apparently did not accept the substitution, as Courtney represented Sconiers-Melikian during the trial on Freitas’s petition to determine ownership of the property. As we have explained, on appeal from the final order of distribution, we cannot review any error with respect to Courtney’s representation of Sconiers-Melikian at the trial on Freitas’s petition.
There is nothing in the record to indicate that another substitution of attorney was ever filed with the court or that the parties were advised that Courtney no longer represented Sconiers-Melikian. (See § 284 [“The attorney in an action . . . may be changed at any time before or after judgment of final determination . . . [¶] 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”]; § 285 [“When an attorney is changed, as provided in [section 284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.”].)
“ ‘It is settled that the attorney of record has the exclusive right to appear in court for his client and to control the court proceedings, so that neither the party himself [citations], nor another attorney [citations], can be recognized by the court in the conduct or disposition of the case.’ ” (People v. Merkouris (1956) 46 Cal.2d 540, 554–555, italics omitted.) “ ‘A party to an action may appear in his own proper person or by attorney, but he cannot do both. If he appears by attorney he must be heard through him, and it is indispensable to the decorum of the Court, and the due and orderly conduct of a cause that such attorney shall have the management and control of the action and his acts go unquestioned by any one [sic] except the party whom he represents. So long as he remains attorney of record the Court cannot recognize any other as having the management of the case.’ ” (Magee v. Superior Court (1973) 34 Cal.App.3d 201, 213, disapproved on another ground in People v. Norris (1985) 40 Cal.3d 51, 56.)
Since the requirements of sections 284 and 285 were not met, Courtney remained the attorney of record and the trial court did not err in refusing to recognize Aguilar as Sconiers-Melikian’s attorney and denying her request for continuance.
With respect to the second contention, Sconiers-Melikian argues it was improper to impose sanctions under section 128.5 because that provision applies only to proceedings that were initiated on or before December 31, 1994. (See former § 128.5, subd. (b)(1).) She contends that to the extent sanctions were awarded under section 128.7, the trial court erred because Freitas’s request for sanctions did not comply with the requirements of that section. Specifically, she asserts Freitas failed to file a separate motion for sanctions and failed to comply with section 128.7’s safe harbor provision, which requires the moving party to give the party against whom sanctions are sought the opportunity to withdraw the offensive pleading. She further asserts the trial court failed to comply with the requirements of section 128.7 by failing to specify its reasons for imposing sanctions. She contends the failure to follow the procedures of section 128.7 deprived her of notice and the opportunity to be heard.
We need not determine whether the trial court had the authority to award sanctions under section 128.5 or 128.7, however, because there was an alternate ground for awarding sanctions, namely Probate Code section 11003. Contrary to Sconiers-Melikian’s assertions, Probate Code section 11003 does not contain the requirements included in section 128.7, such as a separate motion, a safe-harbor period, or specificity, thereby suggesting the Legislature did not intend to impose those requirements. Sconiers- Melikian does not make any other argument with respect to the propriety of awarding sanctions pursuant to Probate Code section 11003.
Thus, even if the trial court erred in awarding sanctions under sections 128.5 or 128.7, Sconiers-Melikian has not shown prejudice. The general rule is that the trial court’s judgment or order is presumed correct and on appeal, error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant therefore has the burden of raising claims of “reversible error or other defect” and to “ ‘present argument and authority on each point made.’ ” (In re Sade C. (1996) 13 Cal.4th 952, 994.) Where the appellant fails to do so, “he [or she] may, in the court’s discretion, be deemed to have abandoned his [or her] appeal. [Citation.] In that event, it may order dismissal. ” (Ibid.)
Representing herself on appeal does not exempt Sconiers-Melikian from compliance with the rule that an appellant must affirmatively show reversible error. “Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Thus, a self-represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Probate Code section 11003 provided an alternative ground for awarding sanctions to Freitas. Other than arguing that Probate Code section 11003 required Freitas to provide a notice of motion that stated the applicable rule violated, described the specific conduct alleged to have violated the rule, and identified the person against whom sanctions were sought – a claim we have rejected – there is nothing in Sconiers-Melikian’s briefs which raises an appellate issue as to this alternate ground; she does not contend an award of sanctions under this provision was legally unsound or otherwise would not have supported, standing alone, the award of sanctions.
We will not speculate about the merits of this other basis for awarding sanctions, as it is the appellant’s responsibility to affirmatively demonstrate that the order must be reversed. (See Walling v. Kimball (1941) 17 Cal.2d 364, 373.) This includes the duty to prove the purported error operated to the appellant’s prejudice; that is, that the outcome of the proceeding would likely have been different had the error not occurred. (Cal. Const., art. VI, § 13; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) Sconiers-Melikian’s failure to incorporate in her briefs any argument or authorities establishing the lack of merit to the other ground for awarding sanctions means she has not demonstrated she was prejudiced by the errors she claims the trial court made. Put differently, even if the trial court was wrong in awarding sanctions under section 128.5 or 128.7, Sconiers-Melikian has not affirmatively shown that the other ground for sanctions does not require the same result. (See Tupman v. Haberkern (1929) 208 Cal. 256, 263; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; see also Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)
In sum, Sconiers-Melikian has not shown the trial court’s decision to award sanctions against her was erroneous.


DISPOSITION
The August 13, 2014 order is affirmed. The parties are to bear their own costs.




GOMES, J.
WE CONCUR:



LEVY, Acting P.J.



PEÑA, J.