Sandoval v. Hupp CA4/2

• Court: California Court of Appeal
• Decided: December 22, 2023
• Docket: E077464
• Status: Unpublished

Opinion

Filed 12/22/23 Sandoval v. Hupp CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DENNIS SANDOVAL, as Successor Trustee, etc., E077464 Plaintiff and Respondent, (Super.Ct.No. PRIN2100300) v. OPINION PAUL HUPP,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.

Affirmed.

Paul Hupp, in pro per, and for Defendant and Appellant.

Dennis M. Sandoval, in pro per, and for Plaintiff and Respondent.

1 Paul Hupp, the primary beneficiary of his mother’s trust, appeals from an order

granting the petition filed by Dennis Sandoval to confirm Sandoval as successor trustee,

to approve his proposed acts in that capacity, and to fix his compensation above that

specified in the trust. (Prob. Code, §§ 15680, 17200, unlabeled statutory citations refer to

this code.) We conclude that all of Hupp’s arguments lack merit, and we accordingly

affirm.

BACKGROUND

A. The Trust 1 Hupp’s mother, Aristea Hupp , created the Revocable Living Trust of Aristea

Hupp in September 1994 and amended it for the third and final time in March 2020 (the

trust). Hupp is the primary beneficiary of the trust, the assets of which include two single

family residences in Beaumont, a condominium in San Diego, a checking account, a

savings account, and an individual retirement account. Upon Aristea’s death, the trustee

is required to satisfy the expenses and claims against the estate. If trust income or assets

remain after such payments, the trustee must make specific, personal property

distributions to Aristea’s daughter (Leslie Ryder) and granddaughters. After those

specific distributions, the trustee has discretion to distribute to Hupp “as much of the

[trust] income and principal” as the trustee “determines necessary or advisable for

[Hupp’s] health, education, maintenance or support.” The trust contains a no-contest

clause prohibiting any party from challenging the trustee’s decisions regarding

1 Because she and Hupp share the same last name, we refer to Aristea by her first name to avoid confusion. No disrespect is intended. 2 distributions to Hupp. Finally, the trust gives the trustee broad powers to manage and

dispose of trust property for the benefit of the estate. As relevant here, the trust permits

the trustee to sell trust property “[w]ith or without court authorization” and to prosecute,

pay, or settle “any claim against the trust.”

Aristea named her niece, Lisa Shiozaki, first successor trustee, and her daughter,

Ryder, second successor trustee. Under the terms of the trust, if Shiozaki and Ryder are

unwilling or unable to serve, then they may select a professional fiduciary to serve in

their place, and if they are unable to make that selection, then the court must appoint a

new trustee. The trustee may resign at any time without giving a reason, and any

beneficiary or cotrustee may petition the court to remove the trustee on specified grounds,

including breach of trust. The trust sets the trustee’s compensation at $50 per hour.

Aristea died on April 12, 2020. One month later, Shiozaki resigned as trustee,

Ryder declined the position, and the two of them selected Sandoval, a licensed attorney

and professional fiduciary, to serve as trustee. On May 13, 2020, Sandoval executed a

witnessed and notarized acceptance of trusteeship.

B. The Petition

In March 2021, Sandoval filed a verified petition under section 17200, asking the

court to confirm his position as trustee, to approve certain acts, and to fix his

compensation at rates of $250 per hour for litigation-related trust work and $175 per hour

for all other trust tasks, with lower rates for work done by another professional fiduciary

under Sandoval’s supervision ($150 per hour) and for secretarial or bill-paying services

3 ($35 per hour). The petition sought approval to sell the trust’s real property and use the

proceeds to pay off the estate’s debts and settle outstanding litigation, which, according

to the petition, included Hupp and Aristea’s lawsuit against their former homeowners

association (Solera Oak Valley Greens Association) and various former neighbors (the

Solera suit). The petition sought approval to use any leftover funds to purchase for Hupp

a new residence located outside the Solera community and, if there were still funds

remaining, to provide Hupp with a monthly distribution.

Regarding the proposed fee schedule, the verified petition stated that the increased

rates were reasonable because administration of the trust had become more difficult than

originally contemplated as a result of Hupp’s uncooperative and litigious behavior. The

petition attached recent orders from federal court and Riverside County Superior Court

declaring Hupp a vexatious litigant. The petition stated that Hupp had not responded to

Sandoval’s attempts to discuss trust issues with him and had instead tried to file a lawsuit

against Sandoval, Shiozaki, and Ryder in federal court. According to the petition, the

court rejected the filing because of Hupp’s status as a vexatious litigant. The petition

stated that Hupp’s litigiousness was the reason Shiozaki resigned and Ryder refused to

serve as trustee, and it was also the reason Shiozaki and Ryder could not find a

professional fiduciary willing to serve as trustee for a rate of $50 per hour.

Hupp filed an opposition to the petition, arguing that Sandoval breached his

fiduciary duty to the trust “in every conceivable and possible way.” The opposition did

not address the proposed acts or the terms of the trust. Rather, Hupp used the filing to

4 argue that Sandoval, Ryder, and Shiozaki had committed various felonies, to disparage

this court and the probate court with insults and profanity, and to threaten to kill

Sandoval. Under the heading “Conclusion,” the opposition stated, “SANDOVAL is not

going to ‘negotiate’ anything related to TRUST. . . . If SANDOVAL does, [Hupp] is

going to blow SANDOVAL’S head off. Is that clear to you SANDOVAL? You are not

going to engage in anymore fraud . . . from here on, and if you do you are going to get

your motherfucking head blown off. You’re now on notice SANDOVAL, your little

punk ass proceeds at your own peril from here on.”

In May 2021, the trial court held a hearing on the petition, and both parties

appeared telephonically. Sandoval told the court that one of the reasons he had filed the

petition was to get an opportunity to speak with Hupp, as Hupp seemed willing to

communicate only through litigation. “I filed what I filed here . . . with the hope that Mr.

Hupp would make an appearance so that I can try to get him to understand that . . . I’d

like to communicate with him if he will respond to my e-mails, to my phone calls, or to

my letters because . . . I’ve gotten no response other than filing of court papers.” Hupp

responded that he objected to the petition on the basis of the arguments in his opposition.

The court took the matter under submission and on June 29, 2021, issued a written order

granting the petition in full.

Hupp, who represents himself on appeal as he did in the probate court, timely

appealed from the court’s order. At some point before he filed his opening brief, Hupp

5 was convicted of criminal threats and elder abuse in Riverside County and was 2 incarcerated.

DISCUSSION

A trustee may file a petition in the probate court to approve certain actions,

“including the exercise of discretionary powers,” and to fix compensation. (§ 17200,

subds. (b)(5), (9).) The probate court, “in its discretion[,] may make any orders and take

any other action necessary or proper to dispose of the matters presented by [such a]

petition.” (§ 17206.) On appeal from an order granting a petition brought under section

17200, we independently construe the terms of the trust and review the probate court’s

decision for abuse of discretion. (Burch v. George (1994) 7 Cal.4th 246, 254 [“The

interpretation of a will or trust instrument presents a question of law”]; Estate of Billings

(1991) 228 Cal.App.3d 426, 430 [“the discretion is that of the trial court, and we will

only interfere with its ruling if we find that . . . no judge reasonably could have reached

the challenged result”].) We presume the court’s order is correct, and it is the appellant’s

2 This appeal was submitted on October 31, 2023, after we issued our tentative opinion and neither party requested oral argument. The following day, Hupp filed a late request for oral argument, and on November 3, 2023, we issued an order vacating submission and allowing the parties to file written statements in lieu of oral argument. (See Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642 [a prisoner does not ordinarily have the right to appear personally in court on civil matters, but courts have broad discretion to devise alternative means to give prisoners meaningful access to the courts].) Hupp did not file a written statement by the deadline of December 4, 2023. On December 18, 2023, Hupp attempted to file a letter asking for an update on a request for a continuance of oral argument that he claimed to have filed on some earlier, unspecified date. We have no record of such a request. We rejected Hupp’s letter because the matter was submitted when he failed to file a written statement. (Cal. Rules of Court, rule 8.256.) 6 burden to demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557,

564 (Denham).)

Hupp’s arguments for reversal fail to demonstrate error. As an initial matter,

Hupp appears to challenge Sandoval’s standing to file the petition, asserting that

Sandoval is not the proper trustee because Hupp had “no input” in selecting him.

However, the trust does not give Hupp any say in the matter. The authority to select the

trustee lies with Shiozaki, Ryder, and the probate court. Sandoval was selected by

Shiozaki and Ryder, in accordance with the terms of the trust. If Hupp believes that there

are legitimate reasons why Sandoval should not serve as trustee, his recourse is to file a

removal petition under section 17200. (§ 17200, subd. (b)(10).)

Next, Hupp contends that the probate court erred by failing to “make rulings on”

the “legion of facts” that he presented in his opposition to the petition. The “facts” that

Hupp is referring to are his numerous allegations of wrongdoing against Sandoval,

Shiozaki, and Ryder. Those statements are merely unsupported, conclusory allegations

that have no bearing on the issues presented by the probate court’s decision.

Consequently, they provide no basis for reversal. (See Regents of University of

California v. Sheily (2004) 122 Cal.App.4th 824, 826-827 & fn. 1 (Sheily) [reviewing

courts may disregard arguments not supported by citation to the record].)

We also reject Hupp’s claim that increasing the trustee’s compensation to “a

ridiculous $350/hour” constitutes reversible error because Sandoval is in collusion with

the homeowners’ association to help it succeed in the Solera suit. The court did not

7 approve a rate of $350 per hour, and in any event, Hupp provides no support for his claim

of collusion. (Sheily, supra, 122 Cal.App.4th at pp. 826-827 & fn. 1.)

Under a heading entitled “No Written Statement of Decision,” Hupp claims that

reversal is required because the court failed to “explain or support [its] ruling.” We

disagree. A party is not automatically entitled to a statement of decision every time a

court makes a ruling. Rather, a statement of decision is required only for certain rulings

and only if a party requests one, which Hupp never did. (Code Civ. Proc., § 632 [when

there has been a “trial of a question of fact,” the court must issue “a statement of decision

explaining the factual and legal basis for its decision as to each of the principal

controverted issues at trial upon the request of any party”]; see also Lien v. Lucky United

Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 623-624 [“The requirement of a

written statement of decision generally does not apply to an order on a motion, even if the

motion involves an evidentiary hearing and even if the order is appealable”].) Moreover,

Hupp cites no authority for his claim that the probate court was otherwise required to

state the “legal analysis” on which the court’s ruling was based, and we are aware of

none. “‘[A]n appellant must do more than assert error and leave it to the appellate court

to search the record and the law books to test his claim. The appellant must present an

adequate argument including citations to supporting authorities and to relevant portions

of the record.’” (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 162

(Ribakoff).) That rule applies to self-represented litigants like Hupp. (Ballard v. Uribe

(1986) 41 Cal.3d 564, 574; Huang v. Hanks (2018) 23 Cal.App.5th 179, 183 & fn. 1.)

8 Next, Hupp argues that his ability to pursue his appeal was impeded by his

incarceration and that appellate counsel should have been appointed for him “at trust

expense.” Specifically, he claims that he had “no way to research case or statutory law”

and that he lacked access to the appellate record because “the jail facility destroyed” his

copy and this court “failed to secure new copies” for him. We are not persuaded. The

trust does not authorize the hiring of counsel for Hupp at the trust’s expense. And as we

explained in our August 2022 order denying Hupp’s multiple requests for appointment of

appellate counsel, Hupp has no constitutional right to appointed counsel in this case

because he was not sued in this case (among other reasons). (Payne v. Superior Court

(1976) 17 Cal.3d 908, 919, 924; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 793.) As

for Hupp’s claim of inadequate resources, his filings in this case and in his other appeals

currently pending before us contradict his assertion that he is unable to conduct legal

research while incarcerated.

Regarding the record, Hupp’s uncorroborated assertion that he lacked adequate

access to the transcripts has no tendency to carry his burden of showing that the order he

challenges on appeal was erroneous or that any error in it was prejudicial. (Denham,

supra, 2 Cal.3d at p. 564; Ribakoff, supra, 27 Cal.App.5th at p. 162.) First, one of

Hupp’s own filings negates his claim of prejudice. On May 6, 2022, Hupp filed a motion

requesting that we provide him with replacement copies of the reporter’s transcript and

the clerk’s transcript. His motion stated that the only reason he needed access to the

reporter’s transcript was to “verify as a fact” that the trial court allowed two attorneys

9 representing the homeowners’ association in the Solera suit to appear at the hearing on

Sandoval’s petition. His motion also stated that the only reason he needed the clerk’s

transcript was to prove that a minute order dated January 26, 2021 “was never served on

[him].” Rather than show that his lack of access to the transcripts prejudiced his appeal,

those statements demonstrate that Hupp would have used the transcripts to make

irrelevant arguments that have no bearing on the merits of the challenged order.

Second, the record does not indicate that Hupp diligently pursued any available

remedies for his alleged lack of access to the transcripts, or that the trial court or this

court committed error by failing to facilitate greater access to those transcripts. On May

24, 2022, we denied Hupp’s May 6 motion, stating that he should “follow the procedures

of the appropriate correctional institutions in order to retrieve his transcripts.” On August

11, 2022, Hupp filed a motion for appointment of counsel in which he raised the missing

transcripts issue again, stating that jail staff had taken his files and “apparently disposed

of them” and that he had filed numerous “grievances over his ‘missing’ papers and

supplies.” On August 23, 2022, we denied that motion, explaining that Hupp was not

entitled to appointed counsel and reiterating that he should follow the correctional

facility’s administrative procedures for requesting access to his documents “or file a

petition for writ of mandate if that fails.” In the following months, Hupp made numerous

motions and requests, but he never again asked us for replacement copies of the

transcripts, informed us of his efforts to obtain copies, or explained why those efforts

10 were unsuccessful. For all of these reasons, Hupp has not shown that lack of access to

the record prejudiced his ability to prosecute this appeal.

Finally, Hupp requests that we take judicial notice of two matters—a case that he

describes as “DCA case Hupp v. Solera Oak Valley Greens Assoc. et al, case E073103”

and a lawsuit against Solera that he claims to have “lodged” in the Riverside County

Superior Court on July 10, 2020. We deny the request because Hupp failed to state why

those matters are relevant to this appeal and whether they were presented to the trial

court, as required by the California Rules of Court. (Cal. Rules of Court, rule

8.252(a)(2).)

Putting aside Hupp’s arguments, we have reviewed the augmented record on

appeal and see no arguable grounds for reversal. Shiozaki and Ryder selected Sandoval

as trustee, as expressly authorized by the trust instrument. Sandoval sought to sell the

real property owned by the trust, to use the proceeds to settle the estate’s debts and

litigation, and to use any remaining funds to purchase a residence for Hupp and provide

him with monthly distributions. All of that is consistent with the terms of the trust. The

trust requires the trustee to “pay any outstanding claims and expenses” on behalf of the

estate, and the trust authorizes the trustee to sell trust property to pay, contest, or settle

any claim against the estate, as well as to make discretionary distributions to Hupp.

Because the trust either required or expressly authorized Sandoval to undertake each of

the proposed acts, the court acted reasonably in approving them.

11 As regards compensation, section 15680 authorizes the court to “fix or allow

greater or lesser compensation than could be allowed under the terms of the trust” under

certain circumstances, such as when “the duties of the trustee are substantially different

from those contemplated” or “compensation in accordance with the terms of the trust

would be inequitable or unreasonably low.” (§ 15680, subd. (b).) Rule 7.776 of the

California Rules of Court provides a list of additional factors a probate court may

consider when presented with a request to increase compensation. The list includes

“[a]ny unusual skill, expertise, or experience brought to the trustee’s work,” the “amount

of risk and responsibility assumed by the trustee,” and the “charges of corporate trustees

for trusts of similar size and complexity.” (Cal. Rules of Court, rule 7.776(3), (5), (7).)

In view of those factors, the court did not abuse its discretion by concluding that

Sandoval’s proposed fee schedule was reasonable. Sandoval submitted a verified petition

explaining why the duties of administering the trust would be substantially different from

those originally contemplated, namely, managing the trust’s assets and making

discretionary distributions to Hupp. According to the petition, Sandoval not only must

defend or settle the Solera suit (which Hupp initiated) but also must work with a hostile

primary beneficiary who has already been declared a vexatious litigant and who makes

death threats when he does not get what he wants. Moreover, the court could reasonably

conclude that because Sandoval is a licensed attorney he has skills and experience that

will be useful in carrying out those tasks.

12 For all of these reasons, we see no arguable basis on which we could conclude that

the trial court abused its discretion.

DISPOSITION

We affirm the order granting Sandoval’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J. We concur:

MILLER Acting P. J.

RAPHAEL J.