Estate of Schooler CA4/1 ( 2021 )


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  • Filed 6/28/21 Estate of Schooler CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    Estate of ROWENA L. SCHOOLER,
    Deceased.
    D076490
    GLORIA TRUMBLE, Individually
    and as Trustee, etc.,
    (Super. Ct. Nos. 37-2007-00101775-
    Plaintiff and Respondent,                              PR-TR-NC & 37-2008-00150817-
    PR-TR-CTL)
    v.
    R. KATHERINE SCHOOLER
    KERNS et al.,
    Defendants and Appellants;
    JOHN SCHOOLER et al.,
    Respondents.
    APPEAL from judgments and orders of the Superior Court of San Diego
    County, Julia Craig Kelety, Judge. Dismissed.
    R. Kathrine Kerns and Jane L. Schooler, in pro. per., for Defendants
    and Appellants.
    Law Office of James A. Bush and James A. Bush, for Respondents John
    Schooler et al.
    No appearance by Plaintiff and Respondent Gloria Trumble.
    This case is one in a number of appeals involving appellants Jane
    Schooler (Jane) and Katherine Schooler Kerns (Katherine) (sometimes
    collectively, Sisters); John Schooler (John) and E. Andrew Schooler (Andrew)
    (sometimes collectively, Brothers), the respondents in this appeal; and Gloria
    Trumble (Trumble), the successor fiduciary of their mother’s estate and
    family trusts.1 We previously dismissed some of the Sisters’ prior appeals
    and expressly found two of them frivolous, sanctioning the Sisters in both of
    those cases.
    In the current appeal, the Sisters argue issues that already have been
    decided against them by this court. These issues include ownership of certain
    real property in Nevada belonging to one of the family trusts; and removal of
    Jane almost 10 years ago as successor trustee of the family trusts and as
    personal representative of her mother’s estate, and appointment of Trumble
    as an independent fiduciary, after the court found a strong inference that
    Jane had breached her fiduciary duty in administering the trusts and estate,
    a finding it later confirmed.
    Moreover, the Sisters’ opening brief fails to follow the most basic rules
    of appellate procedure, which is startling given that a search of this court’s
    records show that, beginning in October 2008 in Schooler et al. v. Schooler et
    al. (case No. D053924), Jane and/or Katherine have filed about 28 separate
    actions in this court involving in some manner the family trusts and/or their
    1     Trumble did not file a respondent’s brief in this case.
    2
    mother’s estate.2 Nonetheless, the Sisters’ opening brief does not include a
    fair and accurate factual and procedural summary to support their
    arguments; and their arguments in the brief are presented in “shotgun”
    fashion with little or no citation to the record, and in most instances without
    any legal support or analysis whatsoever.
    As we explain, we conclude the Sisters’ claims of error are forfeited
    based on their failure to (1) raise them in the trial court, and (2) follow the
    rules of appellate procedure in connection with their opening brief.3
    Reaching the “merits,” we conclude this appeal is barred as it seeks to
    relitigate claims/issues already decided by this court.
    2     In May 2013, the probate court found both Jane and Katherine were
    “vexatious litigants” under Code of Civil Procedure section 391, subdivision
    (b). The Sisters obtained an order from the presiding judges of both the San
    Diego County Superior Court and this court on the basis they allegedly were
    defendants in this action and thus could proceed without a prefiling order.
    3     The Sisters did not file a reply brief.
    3
    We therefore affirm the judgments and orders appealed from; dismiss
    this appeal as frivolous;4 grant the Brothers’ opposed motion for sanctions
    and award them attorney fees in the amount of $25,087.91; and order the
    Sisters to pay an additional sanction of $8,500 to the clerk of this court to
    offset the expenses to the government and taxpayers for this frivolous appeal.
    4      Although the Brothers moved for sanctions by way of a separate
    opposed motion, on April 26, 2021, we notified the parties that we were
    contemplating imposing sanctions against the Sisters and gave the parties an
    additional opportunity to file briefs on this issue within 10 days of that order,
    noting the failure to file a brief would not be deemed as consent to the
    possible imposition of sanctions. (Cal. Rules of Ct., rule 8.276(c) & (d).) We
    also indicated in our April 26 order the parties could request oral argument,
    despite the fact it previously had been waived by the Sisters. On April 30,
    the Sisters sought “clarification” of our April 26 order asking for the “basis”
    on which their appeal is being considered frivolous. That same day we denied
    the Sisters’ request for clarification, and reiterated supplemental briefing, if
    any, was due on or before May 6. The Brothers on May 6 filed a supplement
    to their motion for sanctions. The Sisters, however, did not file a
    supplemental brief regarding sanctions on or before May 6. Instead, on May
    10 they filed a separate motion seeking $4 million in sanctions against not
    only the Brothers, but also against Trumble as trustee. On May 11, the
    Sisters were notified their request for sanctions was untimely and would not
    be considered by this court. (See Cal. Rules of Ct., rule 8.276(b)(1) [providing
    that a party’s motion for sanctions under (a) of this rule “must be served and
    filed before any order dismissing the appeal but no later than 10 days after
    the appellant’s reply brief is due” (italics added)].) The Sisters filed their
    reply brief on March 3, 2021.
    4
    FACTUAL AND PROCEDURAL BACKGROUND5
    1. Prior Proceedings
    In Schooler IV,6 we considered the earlier appeals of the Sisters
    regarding the trusts and their mother’s estate:
    “ ‘A. Removal of Personal Representative and Trustee’
    “ ‘Rowena Schooler (Mother) died in 2004, several years after her
    husband’s death. In trust and will documents, Mother left her assets (in
    equal value) to five of her grown children, Jane, Katherine, John, Andrew,
    and Louis[7] . . . . Mother designated Jane, [then] an attorney,[8] as the
    successor trustee of Mother’s two trusts . . . and the personal representative
    of her estate. The property in the [t]rusts consisted primarily of numerous
    parcels of undeveloped land in California and Nevada. The main asset of
    5     We grant the Brothers’ January 29 and February 26, 2021 requests for
    judicial notice. The January 29 request includes among other documents
    some of this court’s prior opinions in this litigation: Estate of Schooler (Jan.
    6, 2010, D053924) [nonpub. opn.] (Schooler I ); Estate of Schooler (Oct. 24,
    2012, D060251) [nonpub. opn.] (Schooler II ); Estate of Schooler (Nov. 15,
    2013, D062217) [nonpub. opn.] (Schooler III ); and Estate of Schooler (Oct. 17,
    2014, D062877 & D062878 [nonpub. opn.] (Schooler IV). We grant the
    Sisters’ February 26, 2021 motion to augment and request for judicial notice.
    6     See footnote 5, ante.
    7      Louis passed away during the years of this lengthy litigation. Andrew
    is the personal representative of his estate.
    8     Jane was disbarred in 2017 as a result of her actions in this litigation
    as successor trustee of the family trusts and personal representative of her
    mother’s estate. (In re Jane L. Schooler on Discipline (Cal. Sup. Ct., May 17,
    2017, case No. S239759.)
    5
    Mother’s estate [then] was a residence in Del Mar, known as the Del Mar
    beach house.’
    “ ‘Three years after Mother’s death, Jane filed a petition seeking to
    close the estate and distribute the estate assets to one of the [t]rusts. The
    Brothers objected, challenging the estate accounting and alleging Jane
    breached her fiduciary duties in various ways. The Brothers also filed
    numerous safe harbor petitions, one of which was the subject of a prior
    appeal in which this court [in Schooler I] held the Brothers’ objections to
    Jane’s final account and their petition to remove and surcharge Jane for
    alleged breaches of fiduciary duty did not constitute a contest under
    California law.’
    “ ‘On June 23, 2011, the probate court concluded that for ‘good cause’ it
    would remove Jane as trustee and personal representative on its own motion,
    citing . . . sections 8500, subdivision (b) and 15642, subdivision (a) [of the
    Probate Code9]. The probate court noted that after six years of litigation
    between Jane and the Brothers, the parties’ “ ‘efforts’ ” to resolve the disputes
    “ ‘have gone nowhere” ’ and it is “ ‘obvious that this is a totally dysfunctional
    family.” ’
    “ ‘Later, in more fully explaining its reasons for removing Jane as
    trustee and personal representative, the probate court stated: ‘ “[There is] a
    strong inference . . . that Jane . . . has violated her fiduciary duty to exercise
    due diligence in the performance of her duties of carrying out the distributive
    provisions of the trusts and estate . . . . [¶] . . . [¶] . . . The family is totally
    dysfunctional and unable to cooperate, and it appears that every act by one
    side appears to be opposed by the other, meaning the three brothers versus
    9    Unless otherwise noted, all further statutory references are to the
    Probate Code.
    6
    [Jane]. And the [trusts and estate] face the potential of being overwhelmed
    by huge attorney fees and administrative claims related to the family
    dysfunction and controversy.’ ”
    “ ‘[Additionally], [Jane] revealed at the recent hearing that she filed
    bankruptcy petitions for the family trust in order to prevent foreclosure upon
    out-of-state property. It was represented that these facts were not previously
    known to the brothers . . . . [¶] . . . [¶] . . . These bankruptcies give rise to a
    strong inference that Jane . . . has failed to perform her duties of preserving
    estate assets.’
    “ ‘ “Next item is Jane . . . as a fiduciary has actively resisted efforts by
    the brothers to obtain information and records regarding her actions as
    fiduciary, and this gives rise to a strong inference that Jane Schooler has
    violated her duty of loyalty and to avoid a conflict of interest.” ’
    “Next there are assets of the respective estates that have ongoing
    expenses and potential revenue. And . . . there is a need for someone to
    manage these properties and to deal with whatever money or expenses there
    might be.’
    “ ‘The probate court also made express findings that although
    Katherine was designated as a successor fiduciary in some of the estate and
    trust documents, she was not suitable to serve in that position. The probate
    court explained: “ ‘[Katherine] is not represented by counsel, has never been
    represented by counsel [during the] six years of litigation. In spite of
    outstanding petitions to remove Jane Schooler as trustee and executrix,
    Katherine has not ever filed a petition [or] other pleading seeking the
    appointment upon a vacancy in office. And I note that the distribution of the
    trust assets to her contemplates that, I believe, her distribution is to be held
    in trust. And I also note that the controversy existing among the family is
    7
    rather huge, complicated, and that the family, as a whole, is dysfunctional.
    [¶] And based on the foregoing, I find that Katherine would not be a suitable
    successor trustee or fiduciary . . . and there is an overwhelming need for an
    independent fiduciary.’ ”
    “ ‘With respect to a replacement trustee and personal representative,
    the probate court rejected the Brothers’ counsel’s request that one of the
    Brothers be appointed and found that none of the siblings was suitable to
    serve as trustee. The probate court decided to appoint a neutral independent
    representative to serve both as the personal representative and as the trustee
    of the Trusts and ultimately the court selected a professional fiduciary,
    Gloria Trumble, as the successor trustee of the trusts and the personal
    representative of Mother’s estate.’
    “ ‘Jane filed an appeal from the orders removing her as trustee.
    In Schooler II, we affirmed the orders removing her as personal
    representative and trustee.’
    “ ‘B. Breach of Fiduciary Duty Judgment’
    “ ‘In 2011, following Jane’s removal as personal representative and
    trustee and the appointment of Trumble, Jane and Katherine moved to
    disqualify the probate judge for bias. The probate judge denied their motions,
    and Jane challenged the orders denying their motions by way of a notice of
    appeal and separate petitions for writs of mandate. We dismissed Jane’s
    appeal and summarily denied her petitions for extraordinary relief.’
    “ ‘Jane and Katherine sought and were denied continuances of the trial
    of the Brothers’ claims seeking to surcharge Jane for alleged acts of fraud and
    breach of fiduciary duty. Jane’s counsel also unsuccessfully attempted to
    obtain from opposing counsel documents previously served on Jane when she
    represented herself. The day before the trial on the Brothers’ claims,
    8
    December 6, 2011, Jane substituted herself back in as her own attorney;
    however, Jane failed to appear at trial.’
    “ ‘After the trial, on December 16, 2011, the probate court entered a
    judgment finding the Brothers had proved their breach of fiduciary duty and
    fraud claims. In its statement of decision, the probate court found Jane
    enriched herself to the detriment of her siblings and caused substantial harm
    to her siblings and loss to both the trusts and the estate. The court set forth
    specific and detailed examples of Jane’s wrongful conduct and misuse of her
    authority.’
    “ ‘The court ordered Trumble to sell and dispose of assets, including the
    Del Mar beach house. The court further ordered that Jane be evicted from
    the Del Mar beach house and that the Brothers’ attorney determine whether
    Jane’s conduct should be reported to the state bar.’
    “ ‘C. Appeal No. D061206’
    “ ‘In January 2012, by way of separate notices of appeal in the estate
    action and in the two trust actions [discussed post], Jane and Katherine
    appealed from the court’s December 16 judgment, statement of decision and
    related orders. We consolidated those appeals in appeal No. D061206.
    (Schooler III, supra, D062217, fn. omitted.)’
    “2. D061206 and Schooler III
    “Jane and Katherine did not file any brief in appeal No. D061206 and,
    as to both sisters, the appeal was dismissed. In an unsuccessful effort to
    reinstate her appeal in D061206, Jane filed a proposed brief in which she
    attacked procedural orders made by the trial court prior to entry of the
    breach of fiduciary judgment and, in particular, an order denying the sisters’
    motion to disqualify the trial judge. We denied Jane’s motion to reinstate her
    appeal.
    9
    “On April 25, 2012, the probate court entered orders directing that
    Jane cease representing to third parties that she was the personal
    representative of her mother’s estate and the trustee of the two trusts and
    directing that Jane cease representing that the court’s orders had been
    stayed. The order also confirmed the Del Mar beach house belongs to
    Mother’s trust and is under Trumble’s control.
    “On May 10, 2012, the probate court entered a further order rescinding
    a quitclaim deed Katherine had executed with respect to Riverside real
    property owned by a corporation, which in turn was owned by the family
    trust. (Schooler III, supra, D062217.)
    “On May 24, 2012, the probate court determined that Jane and
    Katherine’s motions for a new trial had been denied by operation of law.
    “Jane and Katherine appealed from the April 25, May 10, and May 24,
    2012 orders, which appeal was the subject of our opinion in Schooler III. In
    their briefs in Schooler III, Jane and Katherine recapitulated arguments
    Jane asserted in the proposed brief she had attempted to file in D061206. We
    dismissed the appeal in Schooler III with respect to the order denying their
    motion for a new trial; because Jane and Katherine made no arguments on
    the merits with respect to the remaining orders, we affirmed those orders.
    “In Schooler III, we also found that Jane and Katherine’s prosecution of
    the appeal was both objectively and subjectively frivolous. We relied in
    particular on the fact that in Schooler III Jane and Katherine reasserted
    meritless arguments they had attempted to assert in D061206. We imposed
    on Jane and Katherine $19,485 in sanctions payable to the respondents; we
    also imposed on their attorney $8,500 in sanctions payable to clerk of the
    court.” (Schooler IV, supra, D062877, at pp. 2–8.)
    10
    3. Schooler IV
    “While our opinion in Schooler III grew out of the Brothers’ breach of
    fiduciary duty claims against Jane and Katherine, the[] consolidated appeals
    [in Schooler IV] grow out of Jane and Katherine’s separate disputes with
    Trumble, the personal representative of the estate and replacement trustee of
    the trust[s]. The appeals concern Trumble’s efforts to carry out the probate
    court’s instructions to sell the Del Mar beach house and preserve the assets of
    the trust[s].
    “Following entry of the probate’s court’s order directing that Trumble
    sell the beach house, on April 25, 2012, Trumble obtained an order
    under Estate of Heggstad (1993) 
    16 Cal.App.4th 943
    , 950, determining the
    beach house was trust property. On July 17, 2012, Trumble obtained an ex
    parte order permitting her, as trustee, to borrow funds using the beach house
    as security, which order was later superseded by a separate August 21, 2012
    order confirming Trumble’s power to borrow funds.
    “Thereafter, Trumble filed a petition to terminate the estate
    proceedings. Jane and Katherine opposed the motion to terminate the estate
    on a number of grounds, including their contentions that the Brothers had
    been disinherited and that Trumble should be removed as trustee and
    personal representative because she had supported efforts by the Brothers to
    make Jane responsible for attorneys fees incurred while she was executor of
    the estate and trustee. The sisters also demanded an accounting of the funds
    Trumble had borrowed as trustee. The probate court found that in light of its
    earlier order determining that the beach was trust property, the estate had
    no assets, and terminated the estate.
    11
    “Although in July 2012, the appraised value of the beach house was
    $1,750,000, Trumble was able to obtain an all cash offer of $1,855,000 for the
    house, which she accepted on September 7, 2012. The probate court
    confirmed that sale on October 25, 2012.
    “4. Issues Briefed [and Decided in Schooler IV]
    “Our docket in appeal No. D062877 discloses a notice of appeal and
    three amended notices of appeal, which together seek review of no less than
    18 orders entered by the probate court between July 17, 2012, and February
    21, 2013. As Trumble points out in her respondent’s brief in D062877, Jane
    and Katherine’s opening brief in D062877 only addresses two of the 18
    orders: the July 17, 2012 order confirming Trumble’s power, as trustee, to
    borrow money and the October 19, 2012 order terminating probate
    proceedings in Mother’s estate.
    “Our docket in appeal No. D062878 discloses a notice of appeal and an
    amended notice of appeal that seek review of eight of the same orders subject
    to appeal in appeal No. D062877 and an April 19, 2013 judgment establishing
    the trust’s ownership of property. Jane and Katherine’s opening brief in
    D062878 only addresses four orders either set forth in their notices of appeal
    or arguably reviewable on appeal from orders set forth in the notices of
    appeal: once again Jane and Katherine’s brief challenges the probate court’s
    July 17, 2012 order confirming Trumble’s power, as trustee, to borrow money;
    Jane and Katherine also challenge an August 21, 2012 ex parte order
    expunging a notice of action, an October 15, 2012 order establishing
    Trumble’s ownership of the Del Mar beach house, and the October 25, 2012
    order confirming sale of the Del Mar beach house.” (Schooler IV, supra,
    D062877, at pp 8–10.)
    12
    In Schooler IV, we concluded the Sisters’ challenge to the probate
    court’s July 17, 2012 order permitting trustee Trumble to borrow funds
    secured by the beach house—on the ground that the order was granted ex
    parte—was moot because the July 17 order was superseded by a later
    August 21, 2012 order permitting the loan and from which no notice of appeal
    was filed; and because the beach house, and the security it represented, was
    sold by the probate court on October 25, 2012. (Schooler IV, supra, D062877,
    at p. 8.) Because the sisters did not obtain a stay of the sale and the house
    was in fact sold, we concluded there was no relief available to the Sisters with
    respect to the order permitting Trumble to borrow funds secured by the
    house. (Ibid.)
    The Sisters in Schooler IV also challenged the order terminating the
    estate, arguing the probate court failed to require that Trumble report on
    disposition of estate assets. (Schooler IV, supra, D062877, at p. 11.) We
    rejected this argument because the probate court had found that the beach
    house was trust property and thus, that the estate in fact had no assets,
    which finding was fully supported by the record. (Ibid.)
    As they do in the current case, the Sisters in Schooler IV once again
    challenged the validity of the probate court’s prior determination that Jane
    should be removed as personal representative of Mother’s estate and trustee
    of the trusts. The Sisters also claimed the probate court erred in directing
    that the beach house be sold. (Schooler IV, supra, D062877, at p. 10.) We
    noted in Schooler IV that those issues had been fully resolved against the
    Sisters in Schooler II and III. (Ibid.)
    The Sisters also asserted that the Brothers had been disinherited.
    (Schooler IV, supra, D062877, at p. 11.) We rejected that claim, noting
    in Schooler I that the Brothers’ challenge to Jane’s final accounting had not
    13
    disinherited them and that their attempt to surcharge Jane had not been a
    will contest. (Ibid.) We did agree with the Sisters that the Brothers could
    not attempt to recover their own attorney fees from Jane without violating
    the no contest clause. (Ibid.) However, we noted in Schooler IV that there
    was nothing in the record showing that the Brothers thereafter had sought to
    recover their attorney fees from Jane. Rather, they did oppose the motion
    of Jane’s prior attorneys to recover attorney fees the estate had incurred
    while she was executor. We found that opposition did not violate the no
    contest clause, and thus rejected this claim. (Ibid.)
    Moreover, in Schooler IV we held the probate court had the power to
    expunge on an ex parte basis the notice of lis pendens the Sisters had
    recorded in an effort to prevent Trumble from selling trust assets, which
    sales the probate court had ordered. (Schooler IV, supra, D062877, at p. 5.)
    We thus concluded none of the issues raised by Sisters in either D062877 or
    D062878 had merit.
    Finally, we dismissed the consolidated appeals in Schooler IV, and once
    again sanctioned the Sisters for pursuing a frivolous appeal. We ordered the
    Sisters to pay, as joint and several obligations, Trumble $10,260; and, as an
    additional sanction, to pay the clerk of this court $8,500 within 15 days after
    the date the remittitur issued. (Schooler IV, supra, D062877, at p. 15.) In so
    doing, we noted that the arguments advanced by the Sisters were either
    moot, entirely unsupported by the record, already had been finally resolved
    against them, or were based on a completely erroneous view of the powers of
    the probate court to act ex parte. (Id. at pp. 10–11.) We further noted that,
    in light of the continuous meritless objections in the probate court and the
    number of frivolous appeals in this court, the Sisters had “engaged in an
    14
    unceasing campaign designed to frustrate the probate court’s orders in both
    the trust and estate cases.” (Id. at p. 15.)
    5. Events Following Schooler IV
    Mother’s estate plan ultimately resulted in three different cases in San
    Diego County Superior Court. There was a probate case for Mother’s estate,
    case No. PN28646, which is not the subject of this appeal. The instant appeal
    involves The Rowena L. Schooler Trust of 1999, (sometimes, Rowena Trust),
    case No. 37-2007-00101775-PR-TR-NC (case No. 1775); and The Eugene B.
    Schooler and Rowena Schooler Trust dated December 6, 1989 (sometimes,
    Family Trust), case No. 37-2008-00150817-PR-TR-CTL (case No. 0817).
    A. Damages Against Jane
    On May 13, 2013, the probate court in case No. 1775 entered an order
    after trial against Jane pursuant to section 859.10 This order followed an
    April 19, 2013 bench trial in which Jane did not appear. The order found
    that Jane “wrongfully and in bad faith took property belonging to” the
    Rowena Trust, that the value of such property was $1,855,000.00, and that as
    a consequence, Jane was liable to trustee Trumble for “damages in the
    amount of $3,710,000.00” under section 859. The sisters on June 12, 2013
    appealed the May 13, 2013 order. This appeal, case No. D064660, was
    10     This statute provides in relevant part: “If a court finds that a person
    has in bad faith wrongfully taken, concealed, or disposed of property
    belonging to . . . a trust, or the estate of decedent, . . . the person shall be
    liable for twice the value of the property recovered by an action under this
    part. . . . The remedies provided in this section shall be in addition to any
    other remedies available in law to a person authorized to bring an action
    pursuant to this part.” (§ 859.)
    15
    subsequently dismissed for failure to timely deposit costs for preparing the
    record on appeal. (Cal. Rules of Court, rules11 8.122(c), 8.130(b) & 8.140.)
    B. Damages Against Katherine
    On January 12, 2016, pursuant to section 859 the probate court in case
    No. 0817 entered an order against Katherine after a properly noticed bench
    trial at which Trumble (through counsel) and the Brothers appeared but not
    Katherine (or Jane). In this order, the court confirmed that certain real
    property in Nevada was owned by Tierra Del Mar Corporation, a Nevada
    corporation (TDMC), which in turn was wholly owned by trust B of the
    Family Trust. It also confirmed that other real property in Nevada was
    owned outright by trust B of the Family Trust.
    The court entered this order after finding Katherine had “wrongfully
    and in bad faith taken the Nevada Properties by fraudulently representing
    herself as Trustee” of trust B and as Secretary of TDMC, and “transferring
    the Nevada Properties to herself.” The court found that the value of the
    assets so taken was $553,333.00, and thus entered an award for trustee
    Trumble against Katherine in the amount of $1,106,666 as provided in
    section 859. Katherine did not appeal the order. The January 12, 2016 order
    was memorialized in a judgment in favor of trustee Trumble entered on
    April 26, 2016. Katherine also did not appeal the judgment.
    On March 25, 2019, the probate court entered an amended and restated
    order based on Trumble’s ex parte application filed on March 22, 2019, via
    “drop” (March 25 Ex Parte Order). In the March 25 Ex Parte Order, the
    probate court merely corrected the metes and bounds legal descriptions of two
    of the properties in Nevada that had been inadvertently switched, but had
    otherwise been properly identified, in the January 12, 2016 order. The
    11    All further references to “rules” are to the California Rules of Court.
    16
    March 25 Ex Parte Order also restated Katherine’s liability to Trumble as
    trustee for “damages in the amount of $1,106,666.00” based on the January
    12 order.
    In connection with the March 25 Ex Parte Order, the record shows
    Trumble on March 8, 2019, separately e-mailed the Brothers, but not the
    Sisters, that she would be seeking to amend and restate the January 12, 2016
    order. It appears no date or time of the ex parte hearing was provided to the
    Brothers, however, ostensibly because the ex parte hearing was via “drop,” as
    noted.
    C. Dismissal of Case No. D065506
    In November 2013, the probate court in case No. 0817 entered an order
    confirming the trusts owned certain real property in Nevada. The court in
    connection with this petition refused to award any damages. The Sisters
    appealed from this order in January 2014 in case No. D065506. This court
    dismissed the appeal in June 2015 because the Sisters had failed to obtain a
    prefiling order pursuant to Code of Civil Procedure section 391.7, after they
    had been declared vexatious litigants (as noted ante).
    In denying the Sisters’ petition for rehearing in D065506, this court
    recognized the issue regarding ownership of the Nevada properties had
    previously been decided: “This appeal is from a superior court order
    determining that certain undeveloped real property in Nevada that is held by
    a family real estate investment corporation is an asset of a Schooler family
    trust, of which the Schoolers and their three brothers are beneficiaries and
    respondent Gloria Trumble is the interim trustee. Trumble initiated the
    underlying proceedings after discovering that the [Sisters] had executed and
    recorded a series of quit claim and grant deeds purporting to transfer the real
    property to themselves; she sought an order determining that the property
    17
    was an asset of the trust. Over the [Sisters’] written opposition, the probate
    court ruled in Trumble’s favor.
    “In their application for permission to pursue this appeal, the [Sisters]
    contended that the real property was never part of the trust and was in fact
    distributed to them, as officers and directors, in payment for services at the
    time the corporation was dissolved. (But see [Schooler II] [recognizing that
    the Nevada property was part of the trust]; [Schooler I] [same].) . . .
    “[¶] . . . Here, the superior court declared the [Sisters] vexatious in
    these on-going probate proceedings based on their repeated filings of
    unmeritorious motions, ex parte applications and petitions that it concluded
    were frivolous and appeared to be for the sole purpose of causing unnecessary
    delay in the administration of the family estate and trusts. Although the
    [Sisters] were ostensibly defending themselves in this proceeding, the
    proceeding itself was necessitated by their own efforts to transfer ownership
    of the Nevada real property to themselves, without the approval of the
    superior court and in violation of its long-standing (and unchallenged) orders
    regarding the status of the Nevada property.
    “Under these circumstances, the [Sisters] are fairly subject to the
    prefiling order requirement of Code of Civil Procedure section 391.7 [citation]
    and the court rejects their contention that they were not required to seek
    permission for leave to pursue the current appeal.”
    D. Nevada Litigation
    As noted ante, the January 12, 2016 order confirmed that real property
    in Nevada was owned by the Family Trust and/or TDMC, which entity was
    also owned by the Family Trust; and that Katherine had wrongfully taken
    these properties by representing herself as trustee of the Family Trust.
    Trumble filed an action in the Second Judicial District in Washoe County,
    18
    Nevada, seeking to enforce the January 12 order. The Nevada district court
    adopted the January 12 order in its entirety; “found … any deed executed by
    [Katherine] in her purported capacity as trustee of the trust or secretary of
    TDM[C] was of no legal force or effect”; and the Nevada Court of Appeals in
    Kerns v. Trumble (Nev. Ct. App., May 25, 2018, No. 71559 [nonpub. opn.])
    affirmed the district court’s order domesticating the foreign judgment.
    Prior to the Nevada appeal, the Sisters on or about August, 17, 2012,
    and again on or about September 7, 2012, had filed in the San Diego County
    Superior Court notices of pendency of action concerning properties in
    California, which notices they then recorded in Clark and Washoe Counties,
    Nevada. Trumble in response filed an action in the Eighth Judicial District
    in Nevada to clear title, including motions to expunge the lis pendens.
    (Trumble v. Schooler (case No. A-12-673267-C).)
    On February 4, 2013, the Nevada district court found the lis pendens
    were unlawfully filed in California and ordered them expunged. Despite
    receiving notice of the hearing date and time, the Sisters neither appeared at
    the hearing expunging the lis pendens, nor did they file any responsive
    pleading. The Sisters also did not appeal the district court’s February 4
    order.
    6. The Current Appeal
    The Sisters attached four judgments and one order to their Civil Case
    Information Sheet as required by rule 8.100(g)(1). There are two May 10,
    2019 judgments against Jane arising from case No. 1775, one in favor of John
    and another in favor of Andrew, each in the amount of $1,282,748.94. Each
    judgment provides: “Defendant did not appear at trial. Defendant was
    properly served with notice of trial.” As noted ante, these two judgments for
    the trust beneficiaries stemmed from the judgment for trustee Trumble
    19
    against Jane for $3,710,000.00 entered May 13, 2013, following an April 19,
    2013 bench trial.12
    The May 10 judgments were entered after Trumble on October 4, 2018
    filed a verified and uncontested Fourth and Final Consolidated Account and
    Report of Trustee and Petition for (1) Allowance of Trustee and Attorney
    Fees; and (2) Distribution of Trust Assets (hereinafter, Fourth Account). In
    the Fourth Account that covered the period from January 1, 2017 to
    September 30, 2018, Trumble reported that the judgment against Jane—an
    asset of the trusts—had increased to $3,726,385.75; and that after offsetting
    Jane’s 100 percent beneficial shares in the trusts—reported as $1,160,865.93
    per beneficiary—against the judgment against her left a balance owing of
    $2,565,519.82. The probate court’s December 20, 2018 order approving the
    Fourth Account (sometimes, Fourth Account Order) provided the judgment
    against Jane was to be distributed to John, Andrew, and Andrew as
    administrator of Louis’s estate, with each entitled to receive $855,165.96.
    Following the Fourth Account Order, the Brothers provided Trumble
    with copies of assignments that had previously been executed relating to
    Louis’s beneficial interest in the trusts, which included his interest in the
    judgments against Jane (and Katherine). Trumble thus requested the
    judgments against Jane be distributed to John and Andrew only, with each
    12    As noted, the Sisters appealed the May 13, 2013 judgment. However,
    as also noted their appeal in case No. D064660 was dismissed for failure to
    deposit costs to prepare the appellate record.
    20
    receiving $1,282,748.94, as memorialized in the May 10, 2019 judgments.13
    There also are two judgments against Katherine arising from case No.
    0817 similarly dated May 10, 2019, again in favor of John and Andrew.
    These two judgments resulted from the April 26, 2016 judgment in favor of
    Trumble as trustee for $1,659,999, which judgment Katherine did not appeal.
    In the Fourth Account, Trumble reported that the judgment against
    Katherine was then $1,673,917.75; that after offsetting 100 percent of
    Katherine’s beneficial interest in the trusts against the judgment left her
    owing a balance of $513,051.82; and that John and Andrew would each
    receive $256,514.94 as a result of the assignments by Louis.
    The Sisters also attached to the Civil Case Information Sheet the
    probate court’s Fourth Account Order (dated December 20, 2018) entered in
    case Nos. 1775 and 0817. As noted, the Fourth Account Order distributed to
    the Brothers the remainder of the monetary judgments against the Sisters,
    which, as summarized ante, led to the May 10, 2019 judgments that corrected
    the amount of the distributions based on the assignments by Louis’s estate.
    The Sisters did not file any objections to the Fourth Account, either before or
    13    The Brothers in their respondent’s brief note there is $21.94 difference
    between the stated balance due on the judgment against Jane as reported in
    the Fourth Account ($2,565,519.82) and the Fourth Account Order (dated
    December 20, 2018) ($2,565,497.88). The May 10, 2019 judgments against
    Jane used the latter figure, which benefited Jane in this small sum and
    which issue the Sisters in any event did not raise in this appeal.
    21
    after the December 20 hearing.14 They also did not attend the December 20
    hearing to lodge any objection.15
    The Sisters in their notices of appeal also referenced the March 25 Ex
    Parte Order in which the probate court merely corrected an error in the legal
    descriptions of two Nevada real properties that had been inadvertently
    switched, as noted ante. The March 25 Ex Parte Order did not change or
    modify the probate court’s previous January 12, 2016 order confirming the
    trusts either directly or, through TDMC, indirectly owned these two and
    other real properties in Nevada. Nor did it change the judgment of
    $1,106,666 against Katherine as set forth in the January 12, 2016 order, that
    became a judgment in favor of trustee Trumble on April 26, 2016. Katherine
    also did not appeal the April 26 judgment.
    DISCUSSION
    I
    Forfeiture
    A. Failure to Appear and Object to Judgments/Orders
    1. Jane
    As summarized ante, the two May 10, 2019 judgments against Jane in
    case No. 1775 were based on the probate court’s May 13, 2013 judgment for
    trustee Trumble following an April 19, 2013 bench trial in which Jane did not
    appear. In addition, Jane neither filed an objection to the Fourth Order on
    which the May 10, 2019 judgments are based, as she failed to pay the court-
    14     The record shows the Sisters on December 18, 2018 attempted to file an
    objection to the Fourth Account but that filing was rejected because they
    failed to pay the required filing fee.
    15    The Fourth Account Order provides Trumble (through her attorney)
    and the Brothers appeared at the hearing “with no other appearances made.”
    22
    required filing fee, nor did she appear at the properly noticed December 20,
    2018 hearing in which the court considered the Fourth Account.
    It is a general rule of appellate procedure that a party’s failure to
    appear and register a proper and timely objection to a ruling or proceeding in
    the trial court forfeits the issue on appeal. (Bell v. American Title Ins. Co.
    (1991) 
    226 Cal.App.3d 1589
    , 1602 (Bell); Jordan v. County of Los
    Angeles (1968) 
    267 Cal.App.2d 794
    , 798 (Jordan) [party forfeited right to
    challenge action by trial court by failing to file briefs or appear for oral
    argument].) Stated differently, “[c]ontentions or theories raised for the first
    time on appeal are not entitled to consideration.” (City of San Diego v. D.R.
    Horton San Diego Holding Co., Inc. (2005) 
    126 Cal.App.4th 668
    , 685; In re
    Marriage of Davenport (2011) 
    194 Cal.App.4th 1507
    , 1528 [argument not
    raised below is forfeited on appeal]; Amato v. Mercury Casualty Co. (1993) 
    18 Cal.App.4th 1784
    , 1794 [“[i]t must appear from the record that the issue
    argued on appeal was raised in the trial court” and “[i]f not, the issue
    is waived [or forfeited]”].)
    On the record before us, we conclude that Jane forfeited any claim of
    error based on the May 10, 2019 judgments as a result of her failure to (1)
    appear at the April 19, 2013 bench trial, where the court found Jane
    wrongfully took trust property valued at $1,855,000.00, which amount was
    doubled as a penalty under section 859; (2) object to the Fourth Account or
    the Fourth Account Order; and (3) appear at the December 10, 2018 hearing
    in which the court considered the Fourth Account. (See Bell, supra, 226
    Cal.App.3d at p. 1602; Jordan, supra, 267 Cal.App.2d at p. 798.)
    2. Katherine
    As noted, the two judgments against Katherine arose out of a January
    12, 2016 order in case No. 0817 following a properly noticed bench trial that
    23
    Katherine did not attend. The court in the January 12 order confirmed that
    certain real property in Nevada was trust property; that Katherine had
    “wrongfully and in bad faith taken the Nevada Properties by fraudulently
    representing herself as Trustee” of one of the trusts; and that the value of the
    assets so taken was $553,333, which amount was doubled as a penalty under
    section 859 for an April 26, 2016 judgment of $1,106,666 that Katherine did
    not appeal. Similar to Jane, Katherine did not object to the Fourth Account
    or the Fourth Account Order, nor did she appear at the December 20 hearing
    that led to the May 10, 2019 judgments in favor of the Brothers.
    On this record, we also conclude that Katherine forfeited any claim of
    error based on the May 10, 2019 judgments as a result of her failure to (1)
    appear at the January 12, 2016 bench trial; (2) object to the Fourth Account
    and Fourth Account Order; and (3) appear at the December 20, 2018 hearing.
    (See Bell, supra, 226 Cal.App.3d at p. 1602; Jordan, supra, 267 Cal.App.2d at
    p. 798.)
    3. Remaining Orders
    For the same reason, we conclude the Sisters’ forfeited any claim of
    error with respect to the December 20, 2018 Fourth Account Order, which
    order led to the May 10, 2019 separate judgments against the Sisters.
    The Sisters in their notices of appeal also referenced the March 25 Ex
    Parte Order in which the probate court merely corrected a transcription error
    in the legal descriptions of two Nevada real properties that had been
    inadvertently switched. Significantly, the March 25 Ex Parte Order did not
    change or modify the probate court’s previous January 12, 2016 order
    confirming (1) the trusts either directly or— through TDMC—indirectly
    owned these two and other real properties in Nevada; and (2) the judgment
    against Katherine for $1,106,666.
    24
    Although the Sisters did not receive notice of the March 25 ex parte
    hearing, as it was conducted via “drop” with no parties present, because the
    March 25 Ex Parte Order was a nonsubstantive change to a previous order
    that they failed to object to, we conclude any claim of error regarding the
    March 25 Ex Parte Order was likewise forfeited. (See Bell, supra, 226
    Cal.App.3d at p. 1602; Jordan, supra, 267 Cal.App.2d at p. 798.)
    4. Claim of Error Based on Section 17200
    The Sisters argue that the court erred in distributing the proceeds of
    the trusts in the May 10, 2019 judgments because the distribution was
    required to be completed by separate petitions under section 17200, as there
    are two trusts, rather than in a consolidated petition and a single account.
    We also conclude the Sisters also have forfeited this argument on
    appeal because they failed to (1) appear and object to the Fourth Account on
    this or any other basis; and/or (2) cite any legal authority to support their
    argument. (See Interinsurance Exchange v. Collins (1994) 
    30 Cal.App.4th 1445
    , 1448 (Collins) [noting that “parties are required to include argument
    and citation to authority in their briefs, and the absence of these necessary
    elements allows this court to treat appellant’s . . . issue as waived [or
    forfeited]”].)
    Even if considered, we find this argument lacking in merit. First, the
    Sisters’ argument contravenes the plain language of section 17200.
    Subdivision (a) of this statute provides a trustee or beneficiary of the trust
    “may petition the court under this chapter concerning the internal affairs of
    the trust or to determine the existence of the trust.” (§ 17200, subd. (a),
    italics added.) Thus, the unambiguous language of subdivision (a) of section
    17200 clearly provides a trustee or beneficiary of a trust with the discretion
    to proceed under section 17200 concerning the affairs of a trust, including,
    25
    but not limited to, “[a]scertaining beneficiaries and determining to whom
    property shall pass or be delivered upon final or partial termination of the
    trust” (id., subd. (b)(4)); “[s]ettling the accounts and passing upon the acts of
    the trustee, including the exercise of discretionary powers” (id., subd. (b)(5));
    and “[i]nstructing the trustee” (id., subd. (b)(6)).
    Second, the Sisters do not explain how they possibly could have been
    prejudiced as a result of Trumble not filing a separate petition under section
    17200, but instead proceeding with a consolidation of the accountings for the
    trusts in a verified petition (i.e., the Fourth Account) in a laudable effort to
    “reduce the costs involved in the administration of the [t]rusts.” In addition,
    consolidating the accountings for the trusts in the Fourth Account also
    appears to have been the trustee’s previous practice as to the second and
    third consolidated accounts. We thus reject on the merits the Sisters’
    argument that Trumble was required to file separate petitions under section
    17200 when seeking court approval to distribute the trusts’ assets, rather
    than proceeding with a consolidated accounting and petition.
    B. Failure to Adhere to the Rules of Appellate Procedure
    “ ‘A judgment or order of the lower court is presumed correct. All
    intendments and presumptions are indulged to support it on matters as to
    which the record is silent, and error must be affirmatively shown.’ ” (Denham
    v. Superior Court (1970) 
    2 Cal.3d 557
    , 564.) “ ‘This is not only a general
    principle of appellate practice but an ingredient of the constitutional doctrine
    of reversible error.’ ” (Ibid.)
    On appeal, a brief must include appropriate citations to the facts in the
    record. (Keyes v. Bowen (2010) 
    189 Cal.App.4th 647
    , 655.) “Because ‘[t]here
    is no duty on this court to search the record for evidence’ [citation], an
    appellate court may disregard any factual contention not supported by a
    26
    proper citation to the record [citation].” (Grant-Burton v. Covenant Care,
    Inc. (2002) 
    99 Cal.App.4th 1361
    , 1379.)
    We recognize the Sisters are appearing in propria persona in this
    appeal, as we have noted. Their status as such does not, however, exempt
    them from the rules of appellate procedure or relieve them of their burden on
    appeal. (See Rappleyea v. Campbell (1994) 
    8 Cal.4th 975
    , 984; see
    also Nwosu v. Uba (2004) 
    122 Cal.App.4th 1229
    , 1247 (Nwosu) [noting self-
    represented litigants “must follow correct rules of procedure” and their
    failure to do so forfeits any challenge on appeal].)
    As part of their appellate burden, the Sisters were obligated to provide
    a statement of facts in their opening brief in conformance with rule
    8.204(a)(2)(C), which requires a “summary of the significant facts limited to
    matters in the record.” However, the “Statement of Facts” in the Sisters’
    opening brief was half-a-page in length, bereft of any citations to the record,
    and in no way summarized in a neutral manner the extensive factual and
    procedural history of this case, as we have done ante.
    Instead, the opening paragraph of the Sisters’ Statement of Facts
    provides: “Respondents accomplished what they set out to do with the 859’s.
    The use of California Probate Code section 859 against Appellants has been
    the main issues on appeal. As far as we can see, the Court of Appeal have
    [sic] never addressed or even mentioned the 859’s.”
    The Statement of Facts further provides: “There were 859s on all the
    property with large double damages judgments except the Riverside Lot,
    respondents dropped from any accounting and court papers. The respondents
    and their attorney’s [sic], with help, set out to overturn our parents[’] estate
    plan and take all the properties and money, in addition to any other property
    of the Appellants. [¶] The purpose of Probate Code section 859 is to prevent
    27
    elder abuse. In all the cases reviewed the property in question was outside
    the decedent[’]s estate when the decedent died, this is the elder abuse part.
    The purpose of the statute appears to be to stop the looting of elders[’]
    estates, when they are weaken[d] by illness or age. This is clearly not the
    case here.”
    As is evident, the Sisters failed to set forth all material evidence in
    their factual summary. (See Nwosu, supra, 122 Cal.App.4th at p. 1246; see
    also Schmidlin v. City of Palo Alto (2007) 
    157 Cal.App.4th 728
    , 738 [requiring
    a party to include both favorable and unfavorable facts in the summary of
    facts].) Thus, to the extent the Sisters claim the probate court’s findings are
    unsupported, including its findings that Jane and Katherine separately
    engaged in wrongful conduct in connection with the trusts and their mother’s
    estate that led to valid judgments against each of them under section 859, as
    summarized ante, we conclude they have forfeited these claims on appeal.
    (See Nwosu, at p. 1246.)
    In addition, the Sisters’ opening brief—to the extent we can understand
    their arguments—in most instances failed to include any citation to legal
    authority and/or any reasoned analysis in support of their various claims of
    error, which, as we have noted, was presented in “shotgun” fashion. For this
    additional reason, we conclude the Sisters forfeited most, if not all, of their
    claims of error in this appeal. (See Collins, supra, 30 Cal.App.4th at p. 1448
    [parties forfeit issues or claims on appeal by failing to include in their briefs
    argument and citation to authority].)
    II
    Claim/Issue Preclusion
    As noted in the Sisters’ Statement of Facts, their main contention on
    appeal is that the probate court erred in finding they separately engaged in
    28
    wrongful conduct in connection with the trusts and their mother’s estate,
    resulting in penalties under section 859 equal to twice the value of the
    property involved/recovered. Assuming these claims of error were not
    forfeited, we nonetheless conclude the Sisters are barred from pursuing them.
    The term “ ‘res judicata’ ” is often used “as an umbrella term
    encompassing both claim preclusion and issue preclusion, which [is]
    described as two separate ‘aspects’ of an overarching doctrine. [Citations.]
    Claim preclusion, the ‘ “ ‘primary aspect’ ” ’ of res judicata, acts to bar claims
    that were, or should have been, advanced in a previous suit involving the
    same parties. [Citation.] Issue preclusion, the ‘ “ ‘secondary aspect’ ” ’
    historically called collateral estoppel, describes the bar on
    relitigating issues that were argued and decided in the first suit.” (DKN
    Holdings LLC v. Faerber (2015) 
    61 Cal.4th 813
    , 824.)
    “ ‘ “The prerequisite elements for applying the doctrine to either an
    entire cause of action or one or more issues are the same: (1) A claim or issue
    raised in the present action is identical to a claim or issue litigated in a prior
    proceeding; (2) the prior proceeding resulted in a final judgment on the
    merits; and (3) the party against whom the doctrine is being asserted was a
    party or in privity with a party to the prior proceeding.” ’ ” (Boeken v. Philip
    Morris USA, Inc. (2010) 
    48 Cal.4th 788
    , 797 (Boeken).)
    Here, we conclude the Sisters’ claims of error based on the May 10,
    2019 judgments are barred by issue preclusion/collateral estoppel. First, the
    issues sought to be precluded from relitigation—the Sisters’ separate
    wrongful conduct giving rise to a penalty under section 859 that was the
    subject of the May 10, 2019 judgments—are identical to the issues previously
    decided at the April 19, 2013 bench trial that was memorialized in a May 13,
    29
    2013 judgment against Jane; and at the January 12, 2016 bench trial, which
    was memorialized in a separate April 26, 2016 judgment against Katherine.
    Second, the separate wrongful conduct of the Sisters was actually
    litigated and necessarily decided in the former proceedings, as noted ante. In
    addition, the decisions in the former proceedings are final and were a result
    of a judgment on the merits, inasmuch as Jane’s appeal of the May 13, 2013
    judgment in case No. D064660 was dismissed, and Katherine did not appeal
    the April 26, 2016 judgment. Finally, the Sisters were parties in all of the
    proceedings.
    Based on these undisputed facts, we therefore independently conclude
    that the Sisters are precluded from relitigating the validity of the May 10,
    2019 judgments for the Brothers. (See Boeken, 
    supra,
     48 Cal.4th at
    p. 797; see also Noble v. Draper (2008) 
    160 Cal.App.4th 1
    , 10 [application of
    the doctrine of issue preclusion or collateral estoppel is a question of law
    subject to de novo review]; Groves v. Peterson (2002) 
    100 Cal.App.4th 659
    , 667
    [same].)
    For the same reason, we conclude the Sisters are barred from
    relitigating issues regarding (1) ownership of various real property in
    Nevada, as that issue was previously litigated and resolved on the merits by
    the probate court in the April 26, 2016 judgment that the Sisters did not
    appeal; and (2) removal of Jane as successor trustee of the trusts and the
    personal representative of her mother’s estate, and the appointment of
    Trumble as an independent fiduciary, as those two issues were previously
    litigated and finally resolved on the merits, as summarized ante.
    30
    III
    Sanctions
    A. Guiding Principles
    As we noted at the outset, the Brothers have moved for sanctions by
    way of separate motion and we have separately provided the parties with
    notice that we were considering imposing sanctions on the Sisters including
    dismissing their appeal as frivolous. (See People ex rel. Lockyer v. Brar (2004)
    
    115 Cal.App.4th 1315
    , 1318 (Brar); In re Marriage of Flaherty (1982) 
    31 Cal.3d 637
     (Flaherty).) As a court of review, in considering sanctions we are
    governed by rule 8.27616 and Code of Civil Procedure section 907.17
    The standards for determining whether an appeal is frivolous are set
    forth in Flaherty. An appeal may be found frivolous and attorney fees
    awarded when the appeal (1) “is prosecuted for an improper motive—to
    harass the respondent or delay the effect of an adverse judgment,” or (2)
    “indisputably has no merit—when any reasonable attorney would agree that
    the appeal is totally and completely without merit.” (Flaherty, supra, 31
    Cal.3d at p. 650.)
    In Kleveland v. Siegel & Wolensky, LLP (2013) 
    215 Cal.App.4th 534
    (Kleveland), we set forth the principles governing our express power to
    impose monetary sanctions under rule 8.276(a) and Code of Civil Procedure
    16    Rule 8.276(a) provides in part: “On motion of a party or its own motion,
    a Court of Appeal may impose sanctions . . . on a party or an attorney for: [¶]
    (1) Taking a frivolous appeal or appealing solely to cause delay; [and] [¶] (2)
    Including in the record any matter not reasonably material to the appeal’s
    determination.”
    17    Code of Civil Procedure section 907 provides: “When it appears to the
    reviewing court that the appeal was frivolous or taken solely for delay, it may
    add to the costs on appeal such damages as may be just.”
    31
    section 907: “In explaining these provisions, our Supreme Court has
    explained ‘an appeal should be held to be frivolous only when it is prosecuted
    for an improper motive—to harass the respondent or delay the effect of an
    adverse judgment—or when it indisputably has no merit—when any
    reasonable attorney would agree that the appeal is totally and completely
    without merit.’ [Citation.]
    “In determining whether an appeal indisputably has no merit,
    California cases have applied both subjective and objective standards. The
    subjective standard looks to the motives of the appealing party and his or her
    attorney, while the objective standard looks at the merits of the appeal from a
    reasonable person’s perspective. [Citation.] Whether the party or attorney
    acted in an honest belief there were grounds for appeal makes no difference if
    any reasonable person would agree the grounds for appeal were totally and
    completely devoid of merit. [Citation.]
    “The objective and subjective standards ‘are often used together, with
    one providing evidence of the other. Thus, the total lack of merit of an appeal
    is viewed as evidence that appellant must have intended it only for delay.’
    [Citation.] An unsuccessful appeal, however, ‘ “should not be penalized as
    frivolous if it presents a unique issue which is not indisputably without
    merit, or involves facts which are not amenable to easy analysis in terms of
    existing law, or makes a reasoned argument for the extension, modification,
    or reversal of existing law.” ’ [Citation.]” (Kleveland, supra, 215 Cal.App.4th
    at pp. 556–557.)
    When sanctions are warranted, in determining their amount we may
    consider such factors as “ ‘ “the amount of respondent’s attorney fees on
    appeal; the amount of the judgment against appellant; the degree of objective
    frivolousness and delay; and the need for discouragement of like conduct in
    32
    the future.” ’ [Citations.]” (Kleveland, supra, 215 Cal.App.4th at p. 558.)
    However, “[r]espondent[s] . . . are not the only parties damaged when
    an appellant pursues a frivolous claim. Other appellate parties, many of
    whom wait years for a resolution of bona fide disputes, are prejudiced by the
    useless diversion of this court’s attention. [Citation.] In the same vein, the
    appellate system and the taxpayers of this state are damaged by what
    amounts to a waste of this court’s time and resources. [Citations.]
    Accordingly, an appropriate measure of sanctions should also compensate the
    government for its expense in processing, reviewing and deciding a frivolous
    appeal. [Citations.]” (Finnie v. Town of Tiburon (1988) 
    199 Cal.App.3d 1
    ,
    17.)
    B. Analysis
    Objectively, the arguments advanced by the Sisters lack merit. As we
    have discussed, these arguments are either forfeited, as the Sisters failed
    both to object to the judgments and orders appealed from and to follow basic
    rules of appellate procedure in presenting their case in their opening brief; or
    are barred by claim/issue preclusion, as summarized ante.
    Subjectively, as was the case in their previous appeals including in
    Schooler III and IV, the record in the instant case once again shows that the
    Sisters continue to frustrate the probate court’s administration of the trusts.
    By way of example only, the Sisters engaged in wrongful and bad faith
    conduct that led the court to impose substantial penalties against each of
    them under section 859; attempted to transfer trust assets to themselves,
    requiring the trustee to file two actions in Nevada to establish the true owner
    of the real property in Nevada and to expunge the lis pendens that the
    Sisters caused to be recorded in that state; and once again, as they did in
    Schooler III and IV, reargued issues that already have been decided, in some
    33
    cases about a decade ago, all of which has caused substantial delay in the
    administration of the estate plan and unnecessary costs both to the estate
    and the other parties. Thus, the record more than amply supports a finding
    of subjective bad faith by the Sisters. (See Kleveland, supra, 215 Cal.App.4th
    at pp. 556–557.)18
    Because the Sisters’ appeal is both objectively and subjectively
    frivolous, we dismiss it. (See Brar, supra, 115 Cal.App.4th at pp. 1319–1320.)
    Moreover, the attorney fees incurred by respondents, the impact of the
    unnecessary delay of these trust and estate proceedings on the parties, and
    the need to deter future misconduct all support imposition of substantial
    sanctions against the Sisters. Accordingly, we impose sanctions on the
    Sisters of $25,087.91 payable to the Brothers, which amount is the attorney
    fees they incurred in connection with this latest appeal. We also impose as
    further sanctions the estimated $8,500 cost of processing this appeal to
    compensate the government and the taxpayers for the Sisters’ frivolous
    appeal. (See In re Marriage of Gong & Kwong (2008) 
    163 Cal.App.4th 510
    ,
    520 [noting a cost analysis undertaken by the Second Appellate District
    18     As noted ante in footnote 4, on this court’s own motion the parties were
    invited on or before May 6, 2021, to file supplemental briefing regarding the
    possible imposition of sanctions against the Sisters. Rather than file a
    supplemental brief on or before May 6, the Sisters on May 10 filed a separate
    motion against the Brothers and Trumble. In their motion, the Sisters
    requested $4 million in sanctions based on the “current fair market value” of
    various Nevada properties that they claim were sold and distributed in
    violation of an automatic stay and that preliminary title reports showed were
    either owned by them and/or TDMC. Because the Sisters’ sanctions motion
    was untimely, this court did not consider their request. However, in this
    court’s view the Sisters’ May 10 sanctions motion is further evidence of their
    subjective bad faith, as they continue to reargue issues that already have
    been fully litigated and resolved against them.
    34
    indicated the cost of processing an appeal that results in an opinion by the
    court was approximately $8,500].)
    DISPOSITION
    The consolidated appeal is dismissed. As sanctions for pursuing a
    frivolous appeal, Jane and Katherine shall, as joint and several obligations,
    (1) pay respondents John and Andrew $25,087.91; and (2) within 15 days
    after the date the remittitur is issued, pay the clerk of this court $8,500. The
    clerk of this court is directed to place the sums paid by the Sisters in the
    general fund.
    BENKE, Acting P. J.
    WE CONCUR:
    HUFFMAN, J.
    HALLER, J.
    35
    

Document Info

Docket Number: D076490

Filed Date: 6/28/2021

Precedential Status: Non-Precedential

Modified Date: 6/28/2021