Estate of Harshine CA3 ( 2021 )

Filed 5/26/21 Estate of Harshine CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
Estate of JIMMIE HARSHINE, Deceased. C088839
LINDA H. LOPEZ, as Special Administrator, etc., (Super. Ct. No. CVPB 15-
1308)
Petitioner and Respondent,
v.
JOYCE TRUTTMAN,
Objector and Appellant.
In this judgment roll appeal, Joyce Truttman challenges the trial court’s
determination that Special Administrator Linda H. Lopez acted with due care even
though the estate of Jimmie Harshine sustained substantial property losses due to water
damage and numerous burglaries. After an evidentiary hearing, the trial court found that
Lopez acted with the ordinary care and diligence owed by a special administrator of an
estate. Truttman appeals.
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On appeal, Truttman contends (1) the trial court’s finding that Lopez fulfilled her
duties as special administrator must be reversed because Lopez did not testify on her own
behalf, (2) the trial court abused its discretion by declining to hold Lopez liable for the
estate’s losses under the doctrine of unclean hands, (3) the trial court misapplied Probate
Code section 8480, subdivision (b),1 in exonerating the bond posted on behalf of Lopez,
and (4) the trial court abused its discretion in awarding attorney fees and costs to Lopez.
We conclude that Lopez was not required to testify on her own behalf about her
efforts as the estate’s special administrator. We deem Truttman’s argument about the
doctrine of unclean hands to be forfeited for lack of any citation of the appellate record.
The trial court properly ordered the special administrator’s bond exonerated because
Truttman did not establish any dereliction of duty by Lopez. Truttman has forfeited her
challenge to costs and fees due to deficient briefing. Accordingly, we affirm the trial
court’s order.
BACKGROUND
Truttman has elected to proceed solely on a clerk’s transcript. (Cal. Rules of
Court, rule 8.121.) Consequently, this is a judgment roll appeal. (Allen v. Toten (1985)
172 Cal.App.3d 1079, 1082-1083.) In the absence of a reporter’s transcript or settled
statement, we draw the facts from the trial court’s findings after hearing. After an
evidentiary hearing, the trial court made the following findings:
Lopez Serves as Special Administrator
Harshine died on October 4, 2015. Harshine’s estate includes a large residential
property in a rural area of Siskiyou County. The property consists of a mobile home and
various outbuildings such as garages and storage buildings. The trial court found that
“[t]he neighborhood is such that the homes are hundreds of yards apart. Water is
1 Undesignated statutory citations are to the Probate Code.
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supplied by a well and pump. During dark periods, the property may be lit by flood
lights mounted on a pole or other structure.” Lopez resides outside Siskiyou County “and
a good distance away” from Harshine’s property.
Truttman “is a neighbor to the property and has the ability to easily access the
property without substantial travel from her home.” The day after Harshine died,
Truttman went onto his property and removed personal property. Truttman did not
provide Lopez or the probate referee with an inventory of items that she removed.
On December 3, 2015, Lopez was appointed as special administrator of Harshine’s
estate. Soon after being appointed, Lopez entered Harshine’s property to inventory and
secure the property. Lopez rekeyed Harshine’s mobile home and purchased padlocks to
secure the outbuildings and gates. Lopez’s husband testified that he accompanied her to
the property to help with the inventory.
Water Damage
In January 2016, Lopez learned that there was a leak at the pump house. She hired
Siskiyou Electrical and Plumbing (Siskiyou Electrical) to fix the leak. Rick George was
the plumber assigned to the job. George testified that the leak was inside the pump house
and caused by water damage. He found the source of the leak and fixed it. That same
month, Lopez hired Siskiyou Electrical to turn the power off to the well pump. Kirk
Bersch was the employee assigned to the job. When he arrived, Bersch found the pump
house to be locked. Unable to enter the pump house, Bersch turned the power off to the
pump house. Without power, the well pump could not operate. While on the property,
Bersch noticed there was standing water around the mobile home. Although he suspected
a leak, Bersch did not investigate. Turning off the power to the pump house would stop
water from entering the home but would not prevent water already inside the pipes from
leaking. Bersch noted the standing water on the work order and believed that the work
order should have been sent to the customer. The trial court recounted that Bersch did
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not testify that he observed any water flooding the residence or flowing from inside the
residence to the outside.
In fall 2016, Lopez again hired Siskiyou Electrical to “ ‘winterize’ ” Harshine’s
property. George was assigned to the job. George testified that he used an air
compressor to blow water out from the pipes and used antifreeze to fill some of them.
According to George, “winterizing the property was a good practice and was commonly
done in this area.”
Debby Stewart is a close neighbor and can see the Harshine property from her
kitchen window. Stewart tried to help keep watch over the property. Stewart testified
that sometime during 2016, she “saw water flowing down the front porch steps of the
residence and into the driveway.” Stewart’s boyfriend called Truttman’s husband to
inform him about the water flow. The trial court noted that there was no evidence at the
hearing that Truttman or anyone else informed Lopez about the water flow. There was
also no evidence that “about when during the year . . . Stewart observed the water
flowing or that anyone verified that the water was actually flowing from the interior of
the house to the exterior.”
The trial court noted that it “was not clear to the court if the water that . . . Stewart
observed outside was the same standing pool of water that . . . Bersch testified as having
observed in January, 2016. . . . George testified that there was no evidence of water
damage inside of the home when he was present in the fall of 2016 to ‘winterize’ the
property. He did not testify as to whether he saw water standing outside of the residence
at that time.”
Burglaries
Truttman testified that seven burglaries occurred on the property during the time
when it was unoccupied. Stewart called Truttman about seven times to report “strange
activity on the property.” Stewart once observed someone in a vehicle ram the gate to get
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off the property when Stewart and her boyfriend drove to the Harshine property to
investigate the presence of an unknown vehicle.
Truttman called the police each time there was a burglary on the property. She
gave Lopez’s contact information to the officers but does not know whether the police
ever contacted Lopez about the burglaries. Truttman attempted to stop the burglaries by
mowing the yard, installing a camera system, and boarding broken windows in the
residence. Nonetheless, the burglaries continued and the camera system was stolen.
At some point, Lopez “was informed that the property had been burgled
once . . . .” Lopez and her husband went to the property to secure it again and to prevent
future burglaries. Lopez’s husband testified that he heard there was a second burglary
but was not informed about any other burglaries. Truttman testified that she did not
contact Lopez after each burglary. The trial court found that “[t]here was no evidence
presented that anyone contacted [Lopez] or her attorney after the first two burglaries.”
Truttman Takes Over as the Estate’s Administrator
On April 14, 2017, Truttman took possession of the estate after being appointed as
the estate’s administrator. On that date, Truttman entered the mobile home and
discovered that it was flooded. The flooding had caused extensive damage to the interior
of the residence. In July 2017, Truttman hired a general contractor to inspect the
residence and assess the damage. The contractor found the leak had already been fixed
but that the interior of the residence was still wet. The water damage extended
throughout the mobile home. In July 2018, the contractor was asked to reinspect the
residence for purposes of updating the estimate of costs for repairs. No repair had been
accomplished during the year between his first and second visits.
The Trial Court’s Order
The trial court determined that Lopez fulfilled her duties as special administrator
by taking reasonable steps to secure Harshine’s property. In making this determination,
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the trial court noted that Truttman “was required to present evidence regarding the lack of
reasonableness of [Lopez’s] conduct under the circumstances of the case. She [has]
failed to do so.”
As to the water damage, the trial court found: “The evidence demonstrates that
[Lopez] was made aware that there was water leaking from the pump house and she
employed a plumber to inspect and repair the leak. In addition, the plumber was asked to
cut the power to the pump house so that water would not continue to be pumped from the
well and onto the property. . . . Water was not available to the property without turning
the power back on.” On the basis of this evidence, the trial court noted: “The question
that was not answered by the evidence is how the power was restored to the property and
the water pump. . . . There was no evidence presented regarding the issue of who turned
the power on again and whether, after the power was turned on, the pump was
operational. Finally, there was also no evidence demonstrating [Lopez’s] knowledge that
the power was turned back on or any fact that gave [Lopez] reason to believe that there
might be an issue with the property after it was winterized.”
The trial court further found that “[t]he property . . . would have been difficult to
secure without employing a caretaker to actually reside on the property,” a step that was
not specifically enumerated as one that a special administrator may take. The trial court
remarked, “It is noteworthy that [Truttman] reasonably attempted to secure the property
against additional theft by taking additional steps to install a security camera, board up
the broken windows, and once more lock the buildings. Despite these reasonable efforts,
burglaries continued on the property. [Truttman] offers no evidence or argument
regarding what additional reasonable steps [Lopez] might have taken to preserve the
estate.”
The trial court rejected Truttman’s argument that Lopez’s failure to testify on her
own behalf established a dereliction of duty. “It is [Truttman’s] burden to present
sufficient evidence that will allow the court to find that [Lopez] acted unreasonably and
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breached her duty of care by doing so. [Truttman] cannot shift that burden by arguing
that the court should consider [Lopez’s] failure to testify as evidence that she had no
defense. It is not [Lopez’s] obligation to present a defense until and unless [Truttman]
meets her burden of proof. Once she has done so, the burden shifts to [Lopez] to present
evidence that she acted reasonably. [Lopez] is by no means required to personally testify
and her failure to do so may not be considered by the court as evidence of breach. . . .
[Lopez] presented adequate evidence that she acted reasonably under the circumstances
of this case without testifying.”
Based on these findings, the trial court ordered that (1) Truttman take nothing on
her claim that Lopez breached her duties as special administrator, (2) Lopez receive
reasonable compensation and costs as special administrator, (3) the $100,000 bond posted
by US Specialty Insurance Company on Lopez’s behalf be exonerated, and (4) Lopez be
awarded her attorney fees and costs. The trial court also set a date for the hearing on
final distribution.2 From the trial court’s order, Truttman timely filed a notice of appeal.
DISCUSSION
I
Lack of Testimony by Lopez
Truttman contends the evidence at trial showed that Lopez failed to use ordinary
care and diligence in her capacity as special administrator and thus caused losses to the
Harshine estate. We are not persuaded.
On a judgment roll appeal, we conclusively presume the evidence introduced
during a hearing was sufficient to support the trial court’s findings. (Ehrler v. Ehrler
(1981) 126 Cal.App.3d 147, 154.) Thus, our review is limited to determining whether
any error “appears on the face of the record.” (National Secretarial Service, Inc. v.
2 The record in this appeal does not contain documents relating to a hearing or any
order on final distribution.
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Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.) On the face
of the record, nothing undermines the trial court’s conclusion that Truttman did not meet
her burden of proof to show that Lopez failed to exercise ordinary care and diligence in
taking care of the Harshine estate or that Lopez presented substantial evidence that she
acted reasonably under the circumstances. Without a reporter’s transcript of the
evidentiary hearing, Truttman has not supplied an adequate record to challenge the trial
court’s factual findings. (Ehrler v. Ehrler, at p. 154.)
We reject Truttman’s assertion that Lopez’s failure to testify prevented the trial
court from finding that Lopez acted with due care. Truttman offers no legal authority in
support of this proposition. However, “[t]o demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to facts in the
record that support the claim of error. (City of Lincoln v. Barringer (2002) 102
Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661,
672-673, fn. 3.) When a point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires no discussion by the
reviewing court.’ (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647 . . . .)”
(In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Moreover, the type of substantial evidence that can support a trial court order does
not require the testimony of any particular witness. “[I]t is elementary that the testimony
of only one witness found worthy of belief is sufficient for the proof of any fact and
justifies a finding in accordance with such testimony, notwithstanding a number of other
witnesses have testified to the contrary.” (Michael Distributing Co. v. Tobin (1964) 225
Cal.App.2d 655, 660-661, italics added; Evid. Code, § 411 [“Except where additional
evidence is required by statute, the direct evidence of one witness who is entitled to full
credit is sufficient for proof of any fact.”].) Here, the testimony of witnesses introduced
on behalf of Lopez constituted sufficient evidence to establish that Lopez acted with the
requisite care demanded of a special administrator.
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II
Unclean Hands
Truttman next argues that the trial court should have credited her “evidence of . . .
Lopez’s ‘unclean hands’ breach of her fiduciary duties as Special Administrator of the
Harshine estate.” (Italics added.) In support of this argument about her evidence,
Truttman does not offer a single citation to the appellate record. The California Rules of
Court require that statements of fact in an appellate brief be supported with citations to
the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Pierotti v. Torian (2000) 81
Cal.App.4th 17, 29 [“It is axiomatic that an appellant must support all statements of fact
in his briefs with citations to the record . . . .”].)
In the absence of any record citations, we may decline to address an argument on
the merits. “When an appellant’s brief makes no reference to the pages of the record
where a point can be found, an appellate court need not search through the record in an
effort to discover the point purportedly made. [Citations.] We can simply deem the
contention to lack foundation and, thus, to be forfeited.” (In re S.C., supra, 138
Cal.App.4th at pp. 406-407.) Accordingly, the argument is deemed forfeited.
III
Exoneration of the Probate Bond Posted by Lopez
Truttman argues that the trial court erred in ordering exonerated the $100,000
bond posted by US Specialty Insurance Company on behalf of the special administrator.
In Truttman’s view, the trial court’s order violated section 8480, subdivision (b). We
reject the argument.
Truttman’s argument depends on her assertion that “in her decision Judge Dixon
had actually found . . . Lopez breached her fiduciary duties as Special Administrator of
the Harshine estate.” This assertion is unsupported by a citation to the appellate record.
Examination of the trial court’s findings after hearing shows that Truttman misrepresents
the findings in the order. Rather than finding that Lopez breached her duties as special
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administrator, the trial court expressly found that (1) Truttman’s evidence did not prove
that Lopez acted in dereliction of her duties, and (2) Lopez’s evidence established that
she acted with due care. Thus, Lopez was found to have faithfully executed the duties of
her position as special administrator.
Subdivision (b) of section 8480 provides that a bond posted by a personal
representative of an estate “shall be for the benefit of interested persons and shall be
conditioned on the personal representative’s faithful execution of the duties of the office
according to law.” Because Lopez faithfully executed the duties of her office, the trial
court properly ordered exonerated the bond posted on her behalf. Truttman has not
established error in the exoneration of the bond.
IV
Costs and Fees
Truttman argues that the trial court erred in awarding attorney fees and costs to
Lopez. In support of her argument about fees and costs, Truttman offers no citations to
the appellate record. As we explained above in part II, an argument advanced without
citation to the record in support of factual assertions need not be reviewed on the merits.
(In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) We are not required to search the
appellate record in support of Truttman’s assertions about the reasonability of fees and
costs awarded by the trial court. (Ibid.) The argument is deemed forfeited.
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DISPOSITION
The probate court’s order is affirmed. Lopez shall recover her costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
HULL, J.
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