Matter of Gartz Trusts

Filed 9/28/07 Matter of Gartz Trusts CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest George Williams, Thomas W. Stoever, Edward M. Ross, John B. McIlroy and Ronald H. Hauptman, Judges. Affirmed.

Robert G. Weitzman; and Lionel A. Daley, in propria persona, for Appellants.

Tilem Gole & Dawson and Mitchell J. Dawson for Petitioner and Respondent Manuela Norman.

Hinojosa & Wallet, Andrew M. Wallet and Rebekah E. Swan for Petitioner and Respondent Michael Chmura.

This case involves four consolidated appeals arising out of proceedings concerning the Rosita Gartz Living Trust Dated February 22, 1997 (the 1997 Trust). The appellants are Lionel Daley, one of the two original co-trustees of the 1997 Trust, and Leonela Sanz, Daleys mother and one of the 1997 Trust beneficiaries.[1]The respondents are Manuela Norman, a beneficiary of the 1997 Trust and the second (along with Daley) original co-trustee, and Michael Chmura, who was appointed by the probate court as a referee to conduct a sale of real property owned by the trust, and who later, by court order, became sole trustee.

Appellants Sanz and Daley purport to appeal from a host of orders entered by the probate court in various proceedings concerning the 1997 Trust. Despite numerous extensions, appellants filed an opening brief that fails to contain the essentials required by appellate procedure. Despite additional extensions, they failed to file a reply brief. As we explain, we entertain the appeals only insofar as they challenge the orders removing Daley as trustee (B166484), and surcharging him for attorney fees and costs (B168768 and B169769), and the order imposing a terminating sanction against Daley and Sanz, which we entertain as a premature appeal from the order approving the final accounting of the 1997 Trust (B171711). As we further explain, however, appellants have forfeited their challenges to these orders by virtue of their numerous violations of appellate procedure. Finally, in the alternative, we conclude that appellants challenges to these orders (to the extent we can identify cognizable contentions) are meritless. We therefore affirm the orders in full.

BACKGROUND

Appellants opening brief fails to contain a coherent procedural history or summary of evidence relevant to the orders challenged. Although it is not our burden to do so, we have examined the record on our own. We summarize the proceedings in the probate court in light of the appellate presumption that the lower courts orders are correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

The 1997 Trust

In February 1997, Rosita Gartz created the 1997 Trust, by which she left her estate to her three sisters as beneficiaries: appellant Leonela Sanz (age 92), respondent Manuela Norman (age 90), and Bitina Hatswell (age 84, who is not a party to this appeal). The original co-trustees of the 1997 Trust were appellant Lionel Daley (Sanzs son), and Manuela Norman.

Sale of the Cordell Drive Property

Rosita Gartz died in May 1997. The 1997 Trust owned the single family residence in which Gartz had resided during her lifetime, located at 9267 Cordell Drive in Los Angeles. In August 2000, based on Daleys refusal to cooperate with Norman in listing the property for sale, Norman and beneficiary Hatswell filed a petition with the probate court seeking an order requiring, inter alia, the trustees to sell the property.

In January 2001, over Daleys opposition, the court (Judge Edward M. Ross) granted the petition. By order dated February 21, 2001, the court appointed respondent Michael Chmura as referee with full power to sell the Trusts real property without court confirmation. Daley appealed from the courts order (without co-trustee Normans approval), thus staying the order and preventing the close of escrow.

Chmura made an ex parte application under Probate Code section 1310 for relief from the stay and for an order directing completion of the sale.[2]The court granted the application, ordering that Chmura close the sale and that Daley post a bond of $1.5 million to protect the 1997 Trust against damages, attorney fees and costs which might be incurred if Daleys appeal were unsuccessful. Daley also appealed this order.

Daley never posted the bond.[3]Because his appeals remained pending, however, the title insurer required the 1997 Trust to enter an indemnity agreement (signed by Norman and Hatswell) and withhold $100,000 from the sale proceeds. The sale was ultimately completed for $1,020,000.

The Petitions to Suspend Daleys Powers as Trustee and Permanently Remove Him

On October 23, 2001, Norman and Hatswell filed a petition under section 15642 for an order suspending Daleys trustee powers, and for appointment of an interim trustee under section 17206.[4] They also filed a petition for permanent removal of Daley as trustee. Referee Michael Chmura joined in the petitions, alleging that Daleys conduct made it impossible for him to carry out his duties as referee. The grounds asserted for suspension of Daleys powers and his removal as trustee were, among others, that hostility or lack of cooperation among cotrustees impairs the administration of the trust. ( 15642, subd. (b)(3).) According to the petitions, Daley had taken appeals on behalf of the Trust from court orders without co-trustee Normans approval, and sought to maintain a lawsuit alleging encroachment by neighbors on the Cordell Drive property, even though the Trust had now sold the property and had no standing in the suit.

Daleys Transfer of Trust Funds to His Daughters Corporations

With the petitions for suspension of his powers and his removal as trustee pending, Daley wrote four checks from the 1997 Trust on December 31, 2001, totaling $181,304. The checks were payable to two corporations, Cal Tex Management and Decisive Management, controlled by his daughter. The checks were purportedly payments to Daley as trustee fees. On the same date, Daley also issued a check for $67,468.16 payable to Cal Tex or Decisive Management as reimbursement for the companys advancement of legal fees for the 1997 Trust.

The Suspension of Daleys Powers

The petition for suspension of Daleys powers was heard on January 2, 2002. Daley filed lengthy opposition and objections. After hearing argument from all parties, the court (Judge Thomas Stover) granted the petition to suspend Daleys powers under section 15642, subdivision (b)(3). Norman consented to a suspension of her powers as co-trustee, and the court appointed referee Chmura as interim trustee under section 17206 pending hearing on the petition for permanent removal of Daley as trustee. In a clarifying order issued on January 10, 2002, the court granted Chmura full power and authority to act on behalf of the Trust with respect to all litigation involving the Trust.

The Litigation Instituted by Daley and Inherited By Chmura

As interim trustee, Chmura inherited two appeals and one civil action originally filed by Daley on behalf of the 1997 Trust. Acting on the advice of counsel, Chmura believed none was in the best interest of the trust -- they were meritless, and the associated legal fees (combined with the costs incurred in Chmuras court-ordered administration of the trust) threatened to deplete the trust assets, leaving nothing to be distributed to the beneficiaries. Therefore, Chmura sought to bring the Daley-instituted litigation to a close. Daley opposed him at every turn. The cases, and their outcomes, were as follows.

A. Appeal of Referees Appointment and Sale of the Cordell Drive Property

As we have noted, Daley appealed from the order appointing Chmura as referee and the order directing the sale of the Cordell Drive property. That appeal (as well as all others taken by Daley) came to this court.

After being appointed interim trustee, Chmura moved to dismiss the appeal. We initially granted the motion, but Daley filed a petition for rehearing, and we set the order aside. Daley then filed a substitution of counsel, substituting himself in pro per, even though the 1997 Trust was the appealing party. However, he defaulted under former California Rules of Court, rule 17(a)(1). Ultimately, on March 21, 2003, we granted Chmuras motion to dismiss the appeal.

B. The Bank of America Appeal

Before creating the 1997 Trust, Rosita Gartz had created the 1972 Rosita Gartz Trust (the 1972 Trust). Bank of America was the trustee of the 1972 Trust. In February 1997, Gartz executed a new trust instrument creating the 1997 Trust, and making Daley and Norman co-trustees.

Following Gartz death in May 1997, a dispute with Bank of America arose as to whether Gartz had formally revoked the 1972 Trust and transferred all the assets to the 1997 Trust. Daley and Norman filed a petition to compel the Bank to deliver the assets of the 1972 Trust to the 1997 Trust. The petition was settled by a stipulation under which the Bank transferred the assets to the 1997 Trust, but kept a $100,000 reserve. However, Daley and Norman objected to the Banks final account, and requested a surcharge of $2,900 for purchase of a homeowners insurance policy and $37,000 for attorney fees paid by the Bank in defending against Daley and Normans claims. The probate court granted the Banks attorney fee request, which exhausted the reserve. After judgment was entered, Daley appealed.

Despite his suspension as trustee, Daley continued to pursue the appeal over Chmuras objection. Ultimately, this court granted a request by Chmura (opposed by Daley) to be substituted as appellant. Chmura then reached a settlement with the Bank to dismiss the appeal, with each side bearing its own costs. We dismissed the appeal on March 21, 2003.

C. The Daley v. Schector Encroachment Lawsuit

In December 2000, Daley filed a civil lawsuit on the 1997 Trusts behalf against Julie and Marc Schector, who owned the property adjacent to the Cordell Drive property. The lawsuit alleged that the Schectors had encroached on the Cordell Drive property. Because co-trustee Manuela Norman would not join in the suit, Daley named her as a defendant, and served the complaint shortly before the referees sale of the Cordell Drive property. After Daley was suspended as trustee, he continued to prosecute the suit, over Chmuras objection. Chmura was able to negotiate a settlement, and the case was dismissed on March 28, 2003. Daley filed a notice of appeal from the dismissal.

Daleys Refusal to Release Control of Trust Property to Chmura

Besides interfering with Chmuras attempts to resolve the litigation involving the 1997 Trust and third parties, Daley refused to transfer trust assets to Chmuras control. After Chmura was appointed interim trustee, he made numerous requests to Daly that he turn over all trust documents and control of trust property to him. Daley did not comply, taking the position that his appeals precluded Chmura from acting on behalf of the trust. Chmura employed counsel to negotiate with Paine Webber, who held equities and funds owned by the trust, and ultimately was able to obtain control of the assets held by Paine Webber. The court issued a contempt citation against Daley for violation of the courts orders, but on June 6, 2002 the citation was dismissed, because numerous attempts to serve Daley with the contempt citation were unsuccessful.

Trial on Petition to Permanently Remove Daley as Trustee,

and Petition to Remove Chmura as Referee and Interim Trustee (Appeal B166484)

In the meantime, as Chmura was attempting to resolve the litigation he inherited on behalf of the 1997 Trust and to obtain control of the trust assets, proceedings continued on Normans petition, joined by Chmura, to remove Daley as Trustee. Sanz and Daley opposed that petition, and requested a trial. Moreover, Sanz filed a separate petition to remove Chmura as referee and interim trustee.

Ultimately, following lengthy briefing, trial was held on the competing petitions to remove Daley and Chmura on January 14-17, 21 and 28, 2003. The court heard evidence and argument, granted the petition to remove Daley as trustee, and denied the petition to remove Chmura as referee and interim trustee.

The evidence credited by the court (testimony by Daley, Norman, and Chmura, supplemented by exhibits) detailed Daleys interference with Chmuras administration of the 1997 Trust, his refusal to release trust assets to Chmura, and his misappropriation of trust funds. With respect to the four checks totaling $181,304 that Daley wrote to his daughters corporations in December 2001, the evidence showed that Daley had no court approval for payment of the fees. In a court-ordered accounting he filed in 2002, in which he listed the fees, he presented no documentation to support them. At the time of trial, the funds were being held in the Delaware account of one of his daughters corporations.

As for the check for $67,468.16 payable to his daughters corporations as reimbursement for the companys advancement of legal fees for the 1997 Trust, Daley was unsure whether the moneys were paid for legal services already performed or yet to be performed. He could not recall why he estimated the 1997 Trust would incur these legal fees or how he came to this estimate. He could produce no documentation to support the legal fees, and, indeed, had made the payment from trust funds without any invoice.

Both Norman and Chmura testified that they employed counsel, and incurred attorney fees and costs, in resisting Daleys interference with Chmuras court-ordered administration of the 1997 Trust.

In its statement of decision filed June 3, 2003, the court stated that it removed Daley because he committed a breach of trust by wrongfully transferring trust funds to corporations controlled by his daughter. The court denied the petition to remove Chmura, finding no basis for his removal, and finding him competent to act as trustee and bring the trust to conclusion. The court denied trustee fees to Daley, because he failed to present any credible evidence regarding his alleged fees; no evidence was presented in any way to substantiate any time or other basis upon which fees could be granted; . . . substantial evidence was presented that [Daley] was not entitled to fees pursuant to the terms of the trust; and, [Daley] intentionally, unlawfully and wrongfully misappropriated trust funds necessitating various action[s] against him by the trustee and Manuela Norman thereby causing additional attorneys fees, trustees fees and costs due to [Daleys] multiple breaches of trust, breaches of fiduciary duty and [wrongful] transfer of funds to his daughters corporations.

Because of Daleys breaches, the court ruled that Chmuras attorney fees and expenses on behalf of the Trust, incurred in attempts to rectify Daleys breaches, were chargeable to Daley personally. The court reserved jurisdiction to surcharge Daley.[5] The court also ruled that Norman had incurred $186,880 in attorney fees and costs because of Daleys wrongful conduct in attempts to preserve the trust.

Daley filed a notice of appeal from [a]ll orders and rulings of the Probate Court in this matter, . . . including trial orders of January 14, 15, 16, 21, 28, February 7 and March 7, 2003, as well as from the written order signed on or about February 10, 2003 and filed on or about February 13, 2003 titled: ORDER OF COURT ON PETITION FOR PERMANENT REMOVAL OF LIONEL DALEY AS CO-TRUSTEE OF THE ROSITA G. GARTZ TRUST.

This is the first of the four consolidated appeals before us: B166484.

Surcharge Against Daley

Additional proceedings were held on April 18, 2003, on Chmura and Normans petitions to surcharge Daley for attorney fees and costs. Chmura and Norman supported their petitions with declarations from their attorneys and billing records detailing the hours spent and fees charged in litigation representing the interest of the 1997 Trust against Daleys interference. The court heard the petitions on April 18, 2003, at which counsel for both Norman and Chmura testified.

With regard to Chmuras petition, the court issued a statement of decision on May 10, 2003, in which it ordered Daley to pay $141,662.50 for attorney fees and costs to Chmura as trustee, and $28,490.63 to him as trustees fees. The court based its decision on its finding that Daley breached his fiduciary obligations to the 1997 Trust, causing the trust to employ counsel to recover misappropriated assets, and causing Chmura to incur trustees fees. On May 13, 2003, the court entered judgment against Daley for $170,153.13.

With respect to Normans petition, the court issued a statement of decision dated June 3, 2003, ordering a surcharge of $186,880.50 against Daley for Normans attorney fees and costs. The court based its decision on its finding that Daleys misconduct required Norman to expend the funds to protect her interest in the 1997 Trust. The court entered judgment against Daley on June 3, 2003, in the sum of $186,880.50.

Daley filed a notice of appeal from the judgments. This is the second of the consolidated appeals now before us: B168768.

Normans Attorney Fees Payable By the 1997 Trust

Besides petitioning for a surcharge against Daley, Norman also petitioned to for a declaration that the 1997 Trust was responsible for her attorney fees incurred in representing the trusts interests. Following a hearing held on July 9, 2003, the court ruled that the Trust should reimburse Norman in the sum of $185,380.50 for her attorney fees.[6] The order awarding fees was filed September 19, 2003. On August 25, 2003, Daley filed a premature notice of appeal from the order. This is the third of the consolidated appeals now before us: B169769.

Chmuras Final Accounting and Motion to Compel Discovery

from Daley and Sanz

On April 3, 2003, Chmura filed his First and Final Account of Court Appointed Referee and First Account Current of Trustee, which he later supplemented. Sanz opposed the accounting, and Daley joined in the opposition.

Sanz opposition to the final accounting was lengthy and wide-ranging. Among other things, she made the following accusations: (1) Chmuras trustees fees were excessive; (2) Chmura recklessly sold the Cordell Drive property at below-market price in order to collect excessive referees fees, using his alleged girlfriend as the listing agent for the sale; (3) Chmura wrongfully withheld $10,000 from Sanz in the distribution of the sale proceeds, and committed multiple ethical violations, damaging the trust and causing emotional injury to Sanz; (4) Chmura paid false claims on behalf of the 1997 Trust; (5) Chmura recklessly dismissed the Bank of America appeal as revenge against Daley, causing the trust to lose the potential value of the suit, approximately $170,000; (6) Chmura recklessly dismissed the encroachment lawsuit against the Schectors, causing the trust to lose several hundred thousand dollars; and (7) Chmuras bond was in the name of the wrong trust the 1972 Trust rather than the 1997 Trust.

Daley joined in Sanz opposition. He also filed a list of objections to the final accounting that were in large part duplicative of Sanz.

Sanz and Daley requested that the accounting be set for trial. The court scheduled the trial for November 3, 2003. At the request of Sanz and Daley, the court extended the discovery cutoff date from October 3 to October 17, 2003.

In preparation for trial, Chmura served Sanz and Daley with special interrogatories, form interrogatories, requests for admission, and a request for production of documents. Finding Sanz and Daleys initial responses inadequate, Chmuras counsel sent Sanz and Daleys respective attorneys a letter in an attempt to informally resolve the problems. Ultimately, Chmura moved to compel further responses. On October 16, 2003, the court granted the motion to compel (except as to certain listed requests for admission), and ordered further responses and production of documents without objection from Sanz and Daley by October 24, 2003.

Daleys Attorneys Motion to be Relieved

In the meantime, on October 16, 2003 (on shortened time), Daleys attorney filed a motion to be relieved as counsel and a motion to continue the trial on Chmuras final accounting. In the motion to be relieved, Daleys attorney represented that there had been a breakdown in the attorney client relationship, that his continued representation of Daley would violate the rules of professional conduct, that he was not being paid, and that the stress of continuing to represent Daley would be injurious to his health as a cancer patient in remission. Daley refused to permit a voluntary substitution of counsel. The motion for a continuance was based on the need for additional preparation, and on Daleys need to obtain a new attorney.

The court (Judge Thomas Stover) heard the motions on October 17, 2003. After hearing initial arguments, the court expressed concern that for the last three years [during which Daley had been represented by the same attorney] there has been a historical pattern of delay, stonewalling, last minute filings, ex parte filings, unnoticed filings, filings that do not meet the court rules, and a myriad of attempts at delaying the proceedings. . . . [T]he last time that the matter went to trial before Judge Williams, apparently, . . . it was certainly not favorable to Mr. Daley [who was] beaten up pretty badly. . . . Again, at the last minute there is an attempt to have proceedings to delay the trial [on the final accounting]. So thats the dilemma I have[.] [Y]our comments about your health and your emotional condition, while I certainly want to give them consideration, do also fit consistently with all of the delay and stonewalling thats gone on in the past.

Daleys counsel declined to disclose in camera to the court the alleged grounds for the break down of his attorney-client relationship with Daley. However, he agreed to the courts suggestion that he disclose the grounds to another bench officer, who would then make a recommendation to the court. Daleys counsel then held an unreported conference with a different bench officer (Commissioner Ronald Hauptman). Thereafter, the bench officer recommended to the court that the motion to be relieved be granted.

Despite this recommendation, following additional argument, the court denied the request to be relieved. The court noted that if the motion to withdraw were granted, there would be an unreasonable delay in holding the trial on Chmuras final accounting. As stated by the court, Theres a vast amount of discovery to be done[.] [I]f [counsel were] relieved at this point, everything starts over again, . . . and weve got years of litigation in this. Later, the court observed: There is no question in my mind, and its based upon my experience in this case, that if [Daleys attorney] were to be relieved as counsel, the litigation would never end.

The court found that counsels allegations of mental and physical incapacity were unsubstantiated. Indeed, according to the court, as the proceedings went on, [Daleys counsel] regained his strength. He regained his memory. He showed a remarkably good grasp of the history and the record. In the courts view, counsels performance showed that he was capable of proceeding as Daleys attorney. As for Daleys alleged failure to pay counsel, the court concluded that counsel had unduly delayed bringing the matter to the courts attention.

Finally, insofar as counsel sought relief under the rules of professional responsibility, the court stated: I have great respect for my colleague, Commissioner Hauptman, and I think he understands the parameters of the issues that are involved, but he has no history with this case, and I have seen from the time I first took over . . . until today what, I believe, is a pattern of delay, obfuscation and stonewalling, and I believe, frankly, that Mr. Daley may very well have created a situation which would give [counsel] an opportunity to raise the canons of ethics as a ground for being relieved. I think, frankly, the fact that I have not been able to hear the background in this, I have problems with that. I think its contrived, and the motion to be relieved is denied.

After denying the motion to be relieved, the court initially denied Dalys motion to continue the trial on Chmuras final accounting, but after further argument agreed to continue the trial date to permit Daley and Chmura to take each others depositions. The depositions were scheduled, and the trial date was continued from November 3, 2003 to November 17, 2003.

Motion for Terminating Sanctions Against Sanz and Daley

On October 24, 2003, the date set for compliance with the courts order to compel discovery from Daly and Sanz, Daley provided incomplete responses to Chmuras requests for admissions, prefaced by lengthy objections. Three days later, on October 27, 2003, Chmuras attorneys found, slipped under their door, Daleys further responses to form interrogatories, accompanied by a handwritten note stating that the responses were hand delivered at 7:30 p.m. on October 25. The response to form interrogatory 17.1, which requested explanatory information for every response that was not an unqualified admission in the requests for admission, was evasive. Further, Daley produced no documents.

On October 24, Sanz provided only further responses to the request for production (but no documents) and special interrogatories, prefaced by objections. On November 2, 2003, Sanz served further responses to requests for admission and form interrogatories, but still produced no documents.

Chmura moved for a terminating sanction against Daley and Sanz. Daley and Sanz opposed the motions. The court heard argument on November 6, 2003. On that date, Daley attempted to provide the court with additional responses. The court took the matter under submission. By minute order dated November 17, 2003, the court issued a terminating sanction against Daley and Sanz. The court concluded that [n]either Daley nor Sanz have made any credible effort to comply with [the] order [to compel]. . . . The Daley/Sanz tactics in this litigation [have] been characterized by intentional delay, obfuscation, evasion, half truths and untruths. Their most recent alleged compliance with this courts discovery order is simply more of the same. The . . . terminating sanction is warranted. By this order, the court precluded Sanz and Daley from challenging Chmuras final accounting.

Sanz and Daley filed a notice of appeal purporting to appeal from the following orders: the order of terminating sanctions; orders of monetary sanctions imposed on October 16 and November 17, 2003; a ruling on October 10, 2003, granting in part and denying in part Chmuras motion for judgment on the pleadings as to Daleys objections to the final accounting; and ALL OTHER RULINGS IN THIS MATTER, if any, from August 26, 2003 to date. This is the last of the four consolidated appeals now before us: B171711.

Settlement of the 1997 Trust

On December 8, 2003, the court entered an order settling the final account of the 1997 Trust. No appeal was taken.

DISCUSSION

I. Appellants Deficient Statement of Appealability

California Rules of Court, rule 8.204(a)(2)(B) requires that an appellants opening brief [s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable. (Italics added.) In the present appeal, under the heading, Statement of Appealability, appellants opening brief identifies no less than 24 orders from which the appeals are taken, broken down by the case number of each appeal. Most of the orders are designated merely by date. As to all the listed orders, appellants fail to explain why the order is appealable. Appellants state simply that the appeals are brought under Code of Civil Procedure  904.1, (a)(1). However, that provision, which governs appeals from final judgments in civil cases, is inapplicable. In trust administration proceedings, appealability is governed exclusively by Probate Code sections 1300 and 1304.[7] There is no right to appeal from any order except those made appealable by the Probate Code. (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 2007 Supp.,  173, p. 79; Cal. Practice Guide: Civil Appeals and Writs (Rutter Group 2006)  2:190-2:191, pp. 2-104 2-105.)

Appellants fail to explain why, under the Probate Code, the orders from which they purport to appeal are actually appealable. This procedural deficiency is, in itself, a ground on which to disregard their opening brief. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.) This court has no obligation to independently research whether the cited orders are appealable. We decline to do so. Instead, we shall consider only those orders that are clearly appealable: the orders permanently removing Daley as trustee and surcharging him ( 1300, subd. (g); see fn. 7, ante); and the order imposing terminating sanctions, which precluded Daley and Sanz from challenging Chmuras final accounting.[8]

II. The Order Removing Daley as Trustee (B166484)

Appellants opening brief is nearly unintelligible. It jumps from proceeding to proceeding in apparently random fashion, and fails to present a coherent set of contentions on appeal. As best we can discern, appellants challenges to the order removing Daley as trustee are as follows: (1) the judge who ordered Daleys removal (Judge Williams) was biased; (2) there was a material variance between pleading and proof, in that the case caption referred to the 1972 Trust as amended by the 1997 Trust, rather than to the 1997 Trust itself ; (3) the judge denied them due process by excluding their evidence and believing Chmura and Normans evidence and (4) the evidence does not support removing Daley as trustee.

We conclude that these contentions (and any others appellants might be pursuing to challenge Daleys removal) are forfeited by appellants near total disregard of appellate procedure.

California Rules of Court, rule 8.204(a)(2)(A) requires the opening brief to provide a statement of relevant procedural history, stating the nature of the action, the relief sought in the trial court, and the judgment or order appealed from. Appellants procedural history is an eight-page, single space listing, by date, of apparently every brief filed and every proceeding held in the probate court relating to the four consolidated appeals. At no point in their opening brief do appellants coherently state the procedural background underlying any of the appeals.

More significant is appellants abject failure to summarize relevant evidence. Rule 8.204(a)(2)(C), requires that the opening brief [p]rovide a summary of the significant facts limited to matters in the record. Further, rule 8.204(a)(1)(C), requires that any reference to a matter in the record be supported by a citation to the volume and page number of the record where the matter appears. Appellants repeatedly violate these rules, failing to support factual assertions with appropriate citations to the record, and failing to provide any intelligible summary of the evidence relevant to the orders from which they purport to appeal.

Moreover, to the extent appellants refer to evidence, they cite only the evidence that supports their position, including evidence disbelieved by the probate court. They ignore the contrary evidence that supports the probate court orders. By failing to provide appropriate citations in support of each factual assertion, and by failing to summarize all the evidence in a coherent fashion, appellants have forfeited their challenges to the probate court order removing Daley as trustee. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman); Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97.)

Besides failing to properly summarize the evidence, appellants opening brief suffers from another fatal deficiency -- none of the arguments is adequately supported by reasoned argument and citations to relevant authority. Rather, appellants claims are largely ad hominem attacks on respondents, respondents attorneys, and the court. Because they have failed to support their assertions with reasoned argument and relevant legal citations, we deem all their contentions regarding the removal of Daley forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)

In the alternative, we find appellants challenges to Daleys removal meritless. Appellants first contend that the trial judge was biased against Daley. They cite comments by the trial judge warning Daley to appear at trial (including references to the courts power to compel his appearance through contempt and arrest), and the judges denial of Daleys motion to continue the trial based on his alleged need for immediate dental care. However, the judges strongly worded warnings to Daley about appearing at trial were a response to Daleys prior conduct in the litigation: he had frustrated attempts to take his deposition, had made it difficult to receive personal service of documents by refusing to disclose his address, and had pursued an obstructionist litigation strategy. The judges comments, though threatening, disclosed legitimate concern over Daleys conduct, and a legitimate desire to expeditiously conclude the litigation. Further, the courts denial of Daleys motion for a continuance was well within its discretion the judge could reasonably conclude that Daley exaggerated his condition in order to obtain yet another delay in the litigation. In any event, Daley makes no showing of prejudice from the denial of a continuance, and none appears from his performance as a witness.

Next, appellants contend that a supposed material variance between pleading and proof requires setting aside Daleys removal. The variance cited by appellants is that the caption of the petition to remove Daley (as well as the caption of all documents filed in the 1997 Trust litigation) referred to the Rosita G. Gartz Revocable Living Trust, dated September, 26, 1972 (Amended February 22, 1997), rather than solely to the 1997 Trust itself. A variance between pleading and proof is material only if it actually misled the adverse party to his [or her] prejudice in maintaining [the] . . . defense upon the merits. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1572.) Here, the asserted variance did not mislead appellants in their defense against the petition to remove Daley. Both appellants knew that in settlement of the litigation Daley had instituted against the Bank of America, all assets of the 1972 Trust had been transferred to the 1997 Trust. There was no doubt that Chmura and Norman were seeking Daleys removal as trustee concerning administration of the assets held by the 1997 Trust. Similarly, there was no doubt that appellants were attempting to retain Daleys control over those assets. That the case caption referred to the 1972 Trust as amended by the 1997 Trust, rather than solely to the 1997 Trust, could not, and did not, cause appellants any prejudice.

Appellants contend that the courts evidentiary rulings violated due process. The contention is unsupported by any relevant legal discussion or any showing of prejudice, and for that reason alone is meritless. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) In any event, the claim appears to be that the court erroneously precluded Daley from introducing evidence to justify his opposition to Chmuras administration of the trust and handling of the Daley-instituted litigation. The court excluded that evidence because Chmuras status as referee and interim trustee was imposed by prior court order, and his handling of the trust and the litigation begun by Daley was specifically approved by court order. We find no abuse of discretion in that rationale. The court could reasonably conclude that relitigation of the particulars of Chmuras court-approved conduct was irrelevant to the issues presented at the trial.

Appellants complain that the evidence does not support Daleys removal. In its statement of decision, the trial court stated that it removed Daley as trustee because he committed a breach of trust by wrongfully transferring trust funds to two corporations owned by his daughter, Cal-Tex Consulting Company and Decisive Management Company, and successor corporations. The Probate Code grants the court the power to remove a trustee [w]here the trustee has committed a breach of the trust ( 15642, subd. (b)(1)), [w]here the trustees compensation is excessive under the circumstances (id., subd. (b)(5)), and [f]or other good cause (id., subd. (b)(9).) The decision lies largely within the discretion of the trial court. (Estate of Gilmaker (1962) 57 Cal.2d 627, 633.)

Here, the court did not abuse its discretion in removing Daley. The evidence demonstrated that with the petitions to suspend his powers and remove him as trustee pending in December 2001, Daley transferred $181,304 in trust funds to two corporations controlled by his daughter, purportedly as trustee fees owed to him. However, he had no court approval for payment of the fees, and no documentation to support them. In December 2001, he also transferred trust funds of $67,468 to his daughters corporations as purported reimbursement for advancement of attorney fees. But he could produce no documentation to support the legal fees, had made the payment with no invoice, was unsure whether the monies were paid for legal services already performed or yet to be performed, and could not recall why he estimated the 1997 Trust would incur such legal fees or how he came to this estimate. This evidence amply supports a finding that Daley misappropriated trust funds, thereby breaching the trust, paying himself excessive fees, and creating good cause to remove him.

For all the foregoing reasons, we affirm the order removing Daley as trustee of the 1997 Trust.

III. The Attorney Fee Awards and Surcharges Against Daley (B168768 and B169769)

Although the contentions are difficult to follow, it appears that appellants contend that the 1997 Trust was damaged by the conduct of Norman and Chmuras attorneys, and that therefore that Daley should not have been surcharged for their attorney fees charged in resisting Daleys interference with the administration of the trust. We reject the contentions on the following procedural grounds: (1) appellants fail to support their factual assertions with appropriate references to the record; (2) they fail to summarize all the relevant evidence (Foreman, supra, 3 Cal.3d at p. 881); and (3) the contentions are largely ad hominem attacks on opposing counsel, unsupported by reasoned argument and citation to relevant legal authority (Badie, supra, 67 Cal.App.4th at pp. 784-785).

In the alternative, we reject the contentions on their merits (as best as we can discern the merits). Appellants appear to contend that the evidence does not support the fee awards because the attorneys conduct was contrary to the interests of the 1997 Trust. However, the record supports the trial courts findings that the legal services were beneficial to the 1997 Trust, in that they were provided to Norman and Daley in their attempts to regain control of trust assets from Daley, and to defeat his interference with proper administration of the trust. Further, the fee amounts were amply justified by the declarations and testimony of the attorneys, and their fee records.

We therefore affirm the orders awarding attorney fees and surcharging Daley.

IV. Terminating Sanction Against Daley and Sanz (B171711)

Appellants contend that the probate court erred in imposing a terminating sanction against them. We reject their arguments on procedural and substantive grounds.

A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Further, although trial courts have discretion to impose lesser sanctions, our task is not to supplant our own judgment for that of the trial court, but to ascertain whether the trial court abused its discretion by imposing a terminating sanction. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.) Here, the trial court imposed a terminating sanction on Sanz and Daley, finding that they made no credible effort to comply with its prior order to provide discovery without objection, and that their conduct was a continuation of their litigation strategy of delay.

In attacking the courts ruling, appellants contend that the requested discovery was unduly burdensome and frivolous. But they do not summarize the discovery requests (except for a small portion of the form interrogatories), and do not explain why any specific request (other than the small portion of the form interrogatories they cite) was unnecessary for Chmura to defend his accounting against their opposition. We therefore disregard their challenge to the need for the requested discovery.

Appellants contend that there was no good-faith attempt at informal resolution before the initial motion to compel, because Sanz attorney responded to Chmuras meet-and-confer letter by offering to continue the hearing on the final accounting to a date in early 2004 so as to permit Sanz to provide additional discovery. However, given the prior delay in concluding the administration of the trust, and the advanced age of the beneficiaries (which counseled in favor of prompt resolution), Chmuras rejection of Sanz suggestion of a continuance was warranted.

Appellants contend that the court erred in concluding that Sanz and Daley made no credible effort to comply with discovery. But, once again, they fail to adequately set forth the relevant proceedings and evidence, and further fail to explain how their responses were adequate. We therefore disregard the contention.

Appellants argue that Sanz attorney was not present when the court set October 24, 2003 as the date further responses were due, and that the attorney did not receive notice of that date. At the hearing of October 16, 2003, when Sanz attorney was present, the court mistakenly set the date for further responses as October 25, 2003, a Saturday, which would make discovery actually due the next court day, Monday October 26. At a proceeding on October 17, 2003, the court corrected the date to October 24, 2003. Sanz attorney was not present at the October 17 hearing when the due date was corrected. However, regardless of whether there was some confusion as to whether Sanz responses were due October 24 or October 26, that confusion had little or nothing to do with the imposition of a terminating sanction against Sanz. The responses to the request for production and special interrogatories Sanz provided on October 25 were inadequate. She did not respond to the requests for admission and form interrogatories until November 2, and she never produced any documents. Further, the courts ruling that Sanz had made no credible effort to comply with discovery was not based simply on the lateness of the discovery responses, but on their incomplete and evasive content, and on the tortured history of the litigation. Thus, any confusion about the precise date additional responses were due was immaterial to the imposition of terminating sanctions.

Daley contends that the trial court erred in denying his attorneys motion to withdraw. We disagree. The decision whether to grant a motion to withdraw as counsel lies within the trial courts sound discretion. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133 (Manfredi).) Daleys attorney had represented Daley throughout the lengthy litigation. Given the attorneys prior tactics, pursued on Daleys behalf, of delaying settlement of the 1997 Trust, the court was justifiably suspicious of the attorneys request to withdraw, and justifiably skeptical of the purported justification. The court was not required to accept at face value any of the attorneys representations, including the claim that a conflict of interest existed. (Manfredi, supra, 66 Cal.App.4th at p. 1136.) True, Daleys attorney disclosed the alleged conflict to a different bench officer, who recommended that the motion to withdraw be granted. But that bench officer had no experience with the case. As the court noted in denying the motion to withdraw, there was a history of stonewalling, last minute filings, ex parte filings, unnoticed filings, filings that do not meet the court rules, and a myriad of attempts at delaying the proceedings. The court had no question . . . based upon [its] experience in this case, that if [Daleys attorney] were to be relieved as counsel, the litigation would never end. We will not substitute our judgment for that of the trial court as to the insubstantiality of the asserted grounds for withdrawal, and as to the consequences if the motion were granted. (Manfredi, supra, 66 Cal.App.4th at p. 1136.)

In any event, Daley makes no showing of prejudice arising from the denial of the motion to withdraw. Indeed, it is anomalous that he even raises the issue on appeal, given his refusal to permit his attorney to withdraw voluntarily, and his refusal to voluntarily substitute new counsel. In short, Daley remained represented by the attorney of his choice.

Finally, we conclude that the court did not abuse its discretion in imposing a terminating sanction. The court reasonably concluded that the Sanz and Daleys failure to comply with its discovery order was willful and was in keeping with their strategy of delaying administration of the 1997 Trust. The court also reasonably concluded, given the history of the litigation, that continuing the trial to permit additional responses would serve only to prolong litigation that was already long in need of resolution, and would not result in adequate compliance with its discovery order.

DISPOSITION

The orders appealed from are affirmed. Respondents shall receive their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] We have been informed that during the pendency of the appeals, Leonela Sanz died. However, we have received no request that we abate Sanz appeal as moot, and no request for substitution of her personal representative. Further, were we to request additional briefing on these issues, the result would be further delay in settling the 1997 Trust. Under these circumstances, we entertain Sanz appeal, and have maintained the original title of the case. (See Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745, fn. 1.)

[2] In relevant part, Probate Code section 1310 provides that, with certain exceptions, an appeal stays the judgment or order. ( 1310, subd. (a).) However, [n]otwithstanding that an appeal is taken from the judgment or order, for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary, or may appoint a temporary guardian or conservator of the person or estate, or both, or special administrator, to exercise the powers, from time to time, as if no appeal were pending. All acts of the fiduciary pursuant to the directions of the court made under this subdivision are valid, irrespective of the result of the appeal. An appeal of the directions made by the court under this subdivision shall not stay these directions. ( 1310, subd. (b).) All undesignated section references are to the Probate Code.

[3] Section 1310, subdivision (d), provides: An appeal shall not stay the operation and effect of the judgment or order if the court requires an undertaking, as provided in Section 917.9 of the Code of Civil Procedure, and the undertaking is not given.

[4] Section 15642, subdivision (b)(1) authorizes a trustee or beneficiary to file a petition to remove a trustee. Section 17206 authorizes the court in its discretion to make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part.

[5] Section 16440 permits the court to surcharge a trustee for a breach of trust. It provides:

(a) If the trustee commits a breach of trust, the trustee is chargeable with any of the following that is appropriate under the circumstances:

(1) Any loss or depreciation in value of the trust estate resulting from the breach of trust with interest.

(2) Any profit made by the trustee through the breach of trust, with interest.

(3) Any profit that would have accrued to the trust estate if the loss of profit is the result of the breach of trust.

(b) If the trustee has acted reasonably and in good faith under the circumstances as known to the trustee, the court, in its discretion, may excuse the trustee in whole or in part from liability under subdivision (a) if it would be equitable to do so.

[6] The discrepancy between the surcharge to Daley ($186,880.50) and the amount chargeable to the 1997 Trust ($185,380.50) is not explained in the record.

[7] Probate Code section 1300 provides: In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders:

(a) Directing, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property.

(b) Settling an account of a fiduciary.

(c) Authorizing, instructing, or directing a fiduciary, or approving or confirming the acts of a fiduciary.

(d) Directing or allowing payment of a debt, claim, or cost.

(e) Fixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney.

(f) Fixing, directing, authorizing, or allowing payment of the compensation or expenses of a fiduciary.

(g) Surcharging, removing, or discharging a fiduciary.

(h) Transferring the property of the estate to a fiduciary in another jurisdiction.

(i) Allowing or denying a petition of the fiduciary to resign.

(j) Discharging a surety on the bond of a fiduciary.

(k) Adjudicating the merits of a claim made under Part 19 (commencing with Section 850) of Division 2.

Probate Code section 1304 provides: With respect to a trust, the grant or denial of the following orders is appealable:

(a) Any final order under Chapter 3 (commencing with Section 17200) of Part 5 of Division 9, except the following:

(1) Compelling the trustee to submit an account or report acts as trustee.

(2) Accepting the resignation of the trustee.

(b) Any final order under Chapter 2 (commencing with Section 19020) of Part 8 of Division 9.

(c) Any final order under Part 1 (commencing with Section 20100) and Part 2 (commencing with Section 20200) of Division 10.

(d) Determining whether an action constitutes a contest under Chapter 2 (commencing with Section 21320) of Part 3 of Division 11.

[8] Respondents contend that the order of terminating sanctions is not appealable. Technically, they are correct, because the Probate Code does not make that order specifically appealable. However, the December 8, 2003 order settling the trustees final account is appealable. ( 1300, subd. (b); see fn. 7, ante.) Although appellants failed to file a notice of appeal from the final accounting, they did file a notice of appeal from the order of terminating sanctions dated November 17, 2003. We treat that notice as a premature notice of appeal from the final order on the accounting, filed after the probate court stated its intended ruling, but before entry of the final order. (See Cal. Rules of Court, rule 8.108(d)(2).) Therefore, in the exercise of our discretion, we consider appellants challenge to the terminating sanction to be, in substance, an appeal from the order settling the referees final accounting.