Filed 4/2/18 Marriage of Weston CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re Marriage of STEPHEN AND AMANDA WESTON.

STEPHEN WESTON,

Respondent,

v.

AMANDA WESTON,

Appellant.
G053716

(Super. Ct. No. 08D011599)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Nathan R. Scott and Frank Ospino, Judges. Motion to substitute parties denied. Appeal dismissed as moot.
Warren Law Group, Randy Warren and Lawrence Hellmann for Appellant.
Law Offices of John S. Cowhig and John S. Cowhig for Respondent.
Warren Law Group, Randy Warren and Lawrence Hellmann as Movant.
* * *
Amanda Weston initiated this appeal in June 2016 from the trial court’s denial of her request for an order compelling her former husband, Stephen Weston, to pay additional attorney fees on her behalf (Fam. Code, § 2030). She made the fee motion in postjudgment proceedings that followed the dissolution of the parties’ marriage, division of assets, and a trial on reserved issues, including custody of their then 12-year-old daughter. The court had partially granted Amanda’s earlier fee request, requiring Stephen to pay $12,500 of her postjudgment fees, but denied her subsequent request for the $28,000 balance of approximately $41,000 in attorney fees incurred postjudgment.
The postjudgment proceedings had commenced when the trial court restricted Amanda’s visitation after an incident in which she was placed on an involuntary psychiatric hold (Welf. & Inst. Code, § 5150). But she quickly regained visitation — first monitored and then unmonitored — at the hearing upon her counsel’s return from an extended vacation. Yet the proceedings dragged on an additional year, marred by renewal of a domestic violence restraining order against Amanda and her angry outbursts at Stephen, their daughter, minor’s counsel, the monitor appointed to oversee visitation exchanges between the parents, and others. In denying the fee balance request, the court concluded “it is sadly apparent that [Amanda] has been protracting this custody dispute [in the postjudgment proceedings] with conduct that is inexplicable and inexcusable.”
Amanda died during the pendency of her appeal, tragically committing suicide. The law firm representing her in the postjudgment proceedings moved to substitute itself as her successor in interest to pursue the appeal. We conclude the motion lacks merit. As we explain, the trial court named the parties’ only child as Amanda’s successor in interest and she has, through minor’s counsel, declined to prosecute the appeal. Therefore, with no proper appellant before us, there is no “live controversy” between parties to resolve; instead, the matter is moot and we dismiss the appeal. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 5.22, p. 5-6 [“policy behind a mootness dismissal is that courts decide ‘actual controversies’”]; Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1046 [“California decisions, like the federal courts, generally require a [party] to have a personal interest in the litigation’s outcome. The courts of this state are not authorized to issue advisory opinions”].)
I
PROCEDURAL BACKGROUND
Amanda filed the record on appeal in this matter in October 2016, and after several continuances requested by her counsel, filed her opening brief in March 2017, and Stephen filed his respondent’s brief in June 2017. In August 2017, Amanda’s counsel filed a reply brief and a declaration stating Amanda died in June 2017 “from a wound that was apparently self-inflicted,” while asserting her death “has no relevance to the determination of this appeal . . . .”
On learning of Amanda’s death, this court issued an order stating, “The appeal cannot proceed without an appellant. Appellant’s personal representative or successor in interest is invited to file a motion to substitute a party for a deceased party within 30 days of the date of this order. (See Code Civ. Proc., §§ 377.31 & 377.32.)” The law firm representing Amanda below and on appeal, Warren Law Group (the Law Firm), filed a motion in the trial court (see § 377.33, as discussed below) requesting that the court designate it as Amanda’s successor in interest. Specifically, the Law Firm sought the designation for the limited purpose of challenging in this appeal (G053716) and in a related appeal (G053379, consol. with G052394) the trial court’s decisions to order Stephen to pay only a portion of Amanda’s legal fees in the underlying trial on reserved issues in the dissolution proceeding (ibid.) and in postjudgment proceedings after the dissolution (G053716; this appeal).
The trial court previously had appointed minor’s counsel for Amanda and Stephen’s only child. In response to the Law Firm’s motion requesting appointment as Amanda’s successor in interest, minor’s counsel filed the declaration required by section 377.32 for designation as a deceased person’s successor in interest. In the declaration, minor’s counsel advised the court, as required by section 377.32, that there was no personal representative for Amanda’s estate because “[n]o proceeding is now pending in the State of California for administration of the Estate . . . .” In her declaration, minor’s counsel requested on the child’s behalf that the court designate the child as Amanda’s successor in interest, including for the purpose of pursuing or not pursuing this and the related appeal, because “[n]o other person has a superior right to commence the action or proceeding or to be substituted for Amanda Weston in the pending proceedings.” Minor’s counsel also determined, “[b]ased upon my client’s young age, fragile mental health, and emotional state as she grieves the death of her mother,” and after “discuss[ing] with my client’s therapist the emotional and psychological impact on my young client were she to pursue the pending appellate matter,” counsel would “not . . . pursue” the appeals.
The Law Firm’s request to be appointed successor in interest to pursue these appeals was assigned to a different judge than the judge who presided over the dissolution and postjudgment proceedings. After a hearing, the trial court on September 5, 2017, denied the Law Firm’s motion and designated the child as Amanda’s successor in interest. Specifically, the court’s order stated: “The court appoints the minor child, [E.W.], as successor in interest as sole beneficiary of the estate of the deceased party, Amanda Weston, as represented by and through [minor’s counsel].”
The Law Firm nevertheless then filed motions in this appeal (G053716) and the related appeals (G053379 & G052394) to substitute the Law Firm for Amanda as the appellant, claiming the firm was Amanda’s true successor in interest for purposes of the appeals. (Cal. Rules of Court, Rule 8.36 [substitution of parties by motion].) The Law Firm represented in its September 15, 2017, substitution motion in this court that “[t]he trial court’s final hearing on this matter re successor in interest has not occurred prior to the deadline for the filing of this motion. Thus, no further procedural information is available as of this date.” (Italics added.)
As this appeal progressed, the Law Firm offered no update to the proceedings below. Instead, the Law Firm in February 2018 filed in this court a declaration by one of its attorneys stating that Amanda in her fee agreement with the Law Firm had granted the firm “‘a lien on any and all claims or causes of action that are the subject of the representation under this Agreement.’” On that basis, the attorney asserted in his declaration that the Law Firm acquired “a secured interest in any and all claims or causes of action,” and therefore “only [the Law Firm] can and should be the successor in interest to the deceased appellant[,] at least and at a minimum to the extent [of] the debt owed.”
We have reviewed the trial court’s docket and on our own motion obtained the trial court’s order on December 15, 2017, which rejected the Law Firm’s “Borston motion on calendar this date” asserting an alternate basis for the Law Firm’s designation as Amanda’s successor in interest. The Law Firm did not appeal or otherwise challenge the trial court’s December ruling or its earlier ruling in September denying the Law Firm’s motion to be appointed Amanda’s successor in interest on the appeal. Nor did the Law Firm include the September ruling in its substitution motion on appeal, characterizing the trial court’s order as nonfinal, as noted. Stephen attached the trial court’s September ruling as an exhibit in his opposition to the Law Firm’s motion in this court to substitute itself as the appellant.
II
DISCUSSION
Because the Law Firm has not appealed the trial court’s rulings on the firm’s motion to be designated Amanda’s successor in interest to pursue attorney fees — nor even included those rulings in the record for our review — we deny the firm’s motion to substitute itself as a party in this matter. As a cardinal rule of appellate practice, we presume in the absence of error demonstrated by an appeal or writ petition that the trial court’s decisions are correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham); see Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [fundamental principles of appellate review include: “(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error”]; see also Rhue v. Superior Court (2017) 17 Cal.App.5th 892, 897 [“Failure to provide an adequate record on an issue requires that the issue be resolved against appellant”].)
To resolve the Law Firm’s substitution motion, we begin with section 377.33, which vests the trial court with the authority to determine a decedent’s successor in interest for the action. The Law Firm invoked this authority by asking the trial court to designate it as Amanda’s successor in interest. Specifically, section 377.33 provides: “The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.” (Italics added.)
Nothing in the foregoing provision suggests the trial court erred in appointing Amanda’s daughter as her sole successor in interest. To the contrary, section 377.11 specifies in the code chapter regarding the “Effect of Death,” that to ascertain the proper parties to a civil action, the “‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” In turn, section 377.10, subdivision (b), identifies the estate beneficiary when a decedent dies intestate, which may be inferred here where minor’s counsel vouched there were no probate proceedings. Specifically, that subdivision states that the “‘beneficiary of the decedent’s estate’ means “the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code . . . .” Those probate provisions establish “the issue of the decedent” as the sole beneficiary of an intestate estate when, as here, there is no surviving spouse. (Prob. Code, § 6402, subd. (a).)
More importantly, in failing to appeal, challenge by a writ petition, or even provide a record of the trial court proceedings on its request to be appointed Amanda’s successor in interest, the Law Firm furnishes no basis to countermand the trial court’s order designating Amanda’s daughter as her successor. As noted, the Law Firm does not supply in the appellate record the trial court’s September and December 2017 rulings rejecting the Law Firm’s arguments, nor does the firm include its moving papers, any opposition or additional filings or updates, nor the reporter’s transcript, if any, or a settled statement of the proceedings. Consequently, it is impossible to determine whether the firm preserved below the arguments it now makes in its substitution motion on appeal, contending it is Amanda’s true successor in interest for the appeals. Without preserving its arguments in the record, the Law Firm fails to meet its burden to show the trial court erred in rejecting those arguments. It is the appellant’s burden to demonstrate error (Denham, supra, 2 Cal.3d at p. 566), and we may not reverse a lower court ruling absent demonstrated error. (Cal. Const., art. VI, § 13; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 [“appellant must affirmatively show error by an adequate record”).
In effect, the Law Firm requests in its substitution motion that we consider and determine the successor in interest question on a blank slate, resolving again the issue contested below, but without regard to the trial court’s decision, treating it as a nullity. This approach misconceives the appellate process. “With rhythmic regularity it is necessary for us to say . . . that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, disapproved on other grounds in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2.) It is not for this court on appeal to rule in the first instance on a matter within a trial court’s discretion. (See, e.g., City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1467-1468 & fn. 10.)
Because there is no basis to second-guess the trial court’s successor in interest determination, we deny the Law Firm’s substitution motion. And because the record also shows Amanda’s true successor in interest is aware of the appeal and, through minor’s counsel, has decided not to pursue it, there is no actual controversy between proper parties requiring resolution on appeal. The appeal is therefore moot.


II
DISPOSITION
The Law Firm’s motion to substitute itself as a party for the deceased appellant is denied. The appeal is dismissed as moot for lack of a live controversy between proper parties. The parties shall bear their own costs on appeal.



ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



GOETHALS, J.