Filed 8/31/17 Estate of Holmes CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Julia C. Kelety, Judge. Affirmed.

Law Offices of Rosemary Leonard and Rosemary Meagher-Leonard for Objector and Appellant.

Hughes & Pizzuto, Shannon N. Montisano and Anne M. Rudolph for Petitioners and Respondents.

Laura Holmes (Laura) appeals an order denying her motion to vacate under Code of Civil Procedure section 473, subdivision (b).[1] The underlying order surcharged Laura for personal legal fees she improperly paid from the estate of her father, Alden V. Holmes, Sr. (Alden Sr.), while she was acting as his agent pursuant to a limited springing power of attorney. Alden Sr. has since died. Laura contends the probate court erred under section 473, subdivision (b) because she established excusable neglect, i.e., a debilitating illness, for her failure to appear at the surcharge hearing that resulted in the adverse order against her. We conclude the court did not abuse its discretion by denying the motion to vacate and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Alden Sr. executed a limited springing power of attorney appointing Laura his agent and his son Alden V. Holmes, Jr. (Alden Jr.) his successor agent. Acting as his agent, Laura managed aspects of Alden Sr.'s finances and paid expenses from his accounts. Friction developed among Alden Sr.'s eight children, including Laura, and several petitioned to remove Laura as Alden Sr.'s agent.[2] The probate court appointed a temporary conservator for Alden Sr. and suspended Laura's powers as attorney-in-fact. Laura provided an accounting of income and expenditures during her time as Alden Sr.'s agent.

After receiving this accounting, several of Alden Sr.'s children (William Holmes, Alden Jr., Peter Holmes, and Ginny Holmes-Hobbet; the petitioning siblings) petitioned the probate court under Probate Code section 4541, subdivision (b) to surcharge Laura for improper personal expenditures made from Alden Sr.'s accounts. The petitioning siblings obtained a hearing date of January 12, 2016. They personally served Laura with the petition and notice of the hearing date. They also served the notice of hearing by mail.

At the time, Laura was represented by counsel. Shortly before the hearing date, however, Laura began representing herself in propria persona. Her attorney asked opposing counsel to obtain a continuance of the hearing because Laura was unavailable on the hearing date. The petitioning siblings' attorney obtained a continuance to February 23, 2016. She notified Laura by e-mail of the new hearing date, and Laura acknowledged receipt.

Laura did not appear at the continued hearing or file objections to the petition. The court granted the petition, surcharged Laura approximately $80,000 for improper expenditures, and imposed $5,000 in attorney fees under Probate Code section 4545.

Laura filed a motion to vacate the order under section 473, subdivision (b). She primarily argued that her failure to appear was excused because she was "incapacitated and unable to travel due to a viral infection and pneumonia" between February 20 and March 12, 2016. She included a letter from her physician stating that she suffered from "severe pneumonia which had incapacitated [her] from participating in [her] normal activities of daily living including traveling from February 20, 2016 until March 12, 2016." (Laura lived in the San Francisco Bay area.) She also pointed to her status as a self-represented litigant and her confusion regarding the various pending probate proceedings.

Laura filed proposed objections to the surcharge petition with her motion. In the objections, she recounted the history of her appointment under Alden Sr.'s power of attorney and her activities as his agent. Laura also provided justifications for the challenged expenditures. She argued, among other things, that her legal expenditures were authorized under the power of attorney signed by Alden Sr.

The petitioning siblings opposed Laura's motion to vacate. They argued that Laura's claim of incapacitation was "completely false." They contended that Laura had appeared personally in court on February 19; appeared telephonically in court on March 8; electronically filed documents with the probate court on March 4; sent fax communications in related probate proceedings on February 22, February 25, March 4, March 8, and March 10; and left a voicemail regarding discovery issues on March 8. The petitioning siblings concluded there was no basis to excuse Laura's failure to appear under section 473, subdivision (b).

Following oral argument, the probate court denied Laura's motion to vacate. Among other things, the court found that "[Laura's] alleged incapacity did not prevent her from engaging in other litigation-related activities. The court therefore finds it reasonable to expect that despite any illness, [Laura], at the least, could have but did not attempt to appear telephonically in order to seek continuance. Accordingly, the court findings this proffered basis for relief unpersuasive." The court rejected Laura's reliance on her self-represented status, stating that "[Laura] has represented herself in these proceedings since January 12, 2015, a full year prior to the initial hearing on the petition to surcharge her. Therefore, she should have been aware, and more mindful, of deadlines for court filings and the importance of attending court hearings." As noted, Laura appeals.

DISCUSSION

Section 473, subdivision (b) provides, in relevant part, "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Although many authorities interpreting the statute speak in terms of "default," a motion to vacate under the discretionary provision of the statute at issue here is available against any judgment, dismissal, or order.

"The statute's 'broad remedial provisions' [citation] are to be 'liberally applied to carry out the policy of permitting trial on the merits' [citation]. The party seeking relief, however, bears the burden of proof in establishing a right to relief. [Citation.] The burden is a ' " 'double' " ' one: the moving party ' " 'must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.' " ' " (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

"The statute itself requires that the person who seeks relief upon the theory of excusable neglect must show that the neglect was excusable. [Citations.] The neglect to be excusable must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances. [Citations.] Moreover, the excusable neglect must be the actual cause of the default." (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279 (Transit Ads).)

"The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] ' " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " [Citations.]' [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118; see Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258.) However, because the law favors trial and disposition on the merits, "a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 614.)

Laura argues that the probate court abused its discretion because she presented evidence of her confusion regarding the hearing date and her incapacity. But both these factual issues were the subject of conflicting evidence. We review the probate court's resolution of these factual issues for substantial evidence. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; see Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) Here, the petitioning siblings submitted evidence that Laura acknowledged receipt of the continued hearing date, had represented herself for substantial periods in the past, and actively participated in other proceedings while she was allegedly incapacitated. Based on this evidence, the probate court could reasonably find that Laura was not confused about the hearing date and was not sufficiently incapacitated to excuse her nonappearance at the continued hearing. A party's self-represented status does not excuse his or her noncompliance with court rules or deadlines. (See Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) And, while illness may constitute a sufficient excuse under other circumstances (see, e.g., Transit Ads, supra, 270 Cal.App.2d at p. 280), the probate court was within its discretion to find that Laura's claimed illness or incapacitation was not substantiated, and her absence from the hearing not excusable, under the facts here.

Laura claims the court erred by misunderstanding the timing of her self-representation and this misunderstanding "unduly prejudiced" the court. In explaining why Laura should not have been confused by court dates, the court wrote, "Moreover, [Laura] has represented herself in these proceedings since January 12, 2015, a full year prior to the initial hearing on the petition to surcharge her. Therefore, she should have been aware, and more mindful, of deadlines for court filings and the importance of attending court hearings." Laura correctly points out that she was represented for approximately two months after that date, from November 2, 2015 through January 8, 2016, after which she became self-represented again. The court itself referenced this prior representation in its order. Laura has therefore not shown that the court misunderstood the extent of Laura's self-representation. Moreover, even if the court had erroneously understood Laura to have represented herself continuously since January 12, 2015, Laura has not shown it is reasonably probable the court would have ruled in her favor had it understood the correct dates. (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) The court's conclusion remains valid: Given the lengthy periods when Laura represented herself, she should have understood the importance of deadlines and attending court hearings. Any minor misperception of the extent of Laura's self-representation was harmless.[3]

In the probate court, Laura argued she did not receive legally sufficient notice of the continued hearing. The court rejected Laura's argument, finding that no further notice was legally mandated. In her briefing on appeal, Laura mentions that she allegedly did not receive "proper notification of the hearing," but she provides no reasoned argument or legal authority why she was entitled to notice or why the notice provided was insufficient. As such, to the extent she is pursuing such an argument on appeal, it has been waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

For the foregoing reasons, Laura has not shown the court abused its discretion in denying her motion to vacate under section 473, subdivision (b). We therefore need not consider whether Laura provided an adequate record to support her arguments on appeal in the absence of a reporter's transcript, as the petitioning siblings contend. (Compare Chodos v. Cole (2012) 210 Cal.App.4th 692, 699 with Navarro v. Perron (2004) 122 Cal.App.4th 797, 801.)

DISPOSITION

The order is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.