Wertz v. Weigman CA4/3

Filed 9/6/22 Wertz v. Weigman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
VICTORIA WERTZ, as Trustee, etc.,
Plaintiff and Respondent, G060589
v. (Super. Ct. No. 30-2019-01066813)
DOROTHY WEIGMAN, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Kim R.
Hubbard, Judge. Affirmed. Motion for injunction. Denied.
Dorothy Weigman, in pro. per., for Defendant and Appellant.
Schmiesing, Blied, Stoddart & Mackey, Austin N. Dillon and Anthony G.
Lagomarsino, for Plaintiff and Respondent.
* * *
Dorothy Weigman appeals from the probate court’s order granting
respondent Victoria Wertz’s petition to approve an accounting over Weigman’s
objection. As explained below, Weigman has failed to show any prejudicial error.
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Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2019, Wertz filed a petition for approval of an accounting of
her administration of the Diana Engstrom Living Trust - 2007, from August 29, 2017 to
January 2, 2019, and for an order approving the final distribution of the trust assets. The
probate court docket shows Weigman, who was represented by counsel at the time, filed
an objection to the petition on December 11, 2019, but the written objection is not in the
record on appeal. From Wertz’s response to the objection, however, we can infer that
Weigman objected on the ground that there are assets belonging to Diana Engstrom that
are outside of the trust and that Engstrom created a second trust. In Wertz’s response, she
submitted sworn declarations from herself, her husband and her counsel that they are not
aware of any additional assets outside of the trust or a second trust.
On December 4, 2020, the probate court scheduled a court trial on Wertz’s
petition to begin on February 23, 2021. It ordered all documents “be filed five court days
before trial.” On February 16, 2021, Wertz filed a trial brief in which she further
responded to Weigman’s allegations. Wertz reiterated she is not aware of additional
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After briefing was completed and the matter set for oral argument, Weigman filed a
document entitled “Injunction,” which seeks a “preliminary injunction” “to freeze assets
and return and restore all trusts to this trust.” We deny the motion because it seeks a
remedy not available in this court. Moreover, the purported motion seeks to litigate
matters – such as whether the trustee acted improperly –that are already before this court
in the direct appeal. Finally, to the extent Weigman seeks to preserve the status quo such
as freezing assets, “the perfecting of an appeal stays proceedings in the trial court upon
the judgment or order appealed from or upon the matters embraced therein or affected
thereby, including enforcement of the judgment or order.” (Code Civ. Proc., § 916.)
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assets outside the trust or a second trust. She further argued that Weigman has not shown
any breach of trust reflected in the accounting. Additionally, she argued Weigman
improperly referenced matters that occurred before Wertz’s appointment as trustee or
were irrelevant to the administration of the trust.
Weigman’s trial brief, if any, is not in the record. The trial was continued
twice to accommodate Weigman.
On June 21, 2021, the court trial was held. The trial proceedings are
reflected accurately in the court’s subsequent minute order. As the court, noted Weigman
asked questions about events that predated the accounting period or were irrelevant.
“Objector although repeatedly . . . admonished by the Court, kept asking questions of
events that allegedly occurred in 1988, 1997, 2007, etc. Further, Objector was unable to
ask a relevant question approximately 90 [percent] of the time. She rambled on about
conspiracies and stated on the last day of trial that if the court ruled in Petitioner’s favor
the stock market would crash the next day. The Court itself was asked inappropriate
questions.”
Following trial, in a July 15, 2021 minute order, the probate court approved
the accounting. It overruled Weigman’s objections to Wertz’s petition because “[a]t the
end of trial, Objector has made no showing, whatsoever, of any impropriety in the
Trustee’s accounting.” In connection with this ruling, the court also declined to accept
documentary evidence Weigman submitted for the trial because she failed to comply with
the court’s orders. The court explained that it had informed all parties in person that all
trial exhibits had to be filed five court days before trial. “Further, this requirement is
posted in the trial guidelines on the Court’s public website.” The court rejected
Weigman’s excuses. “At trial, Objector claimed that a court employee had told her the
previous Thursday that she could file exhibits on Friday, June 18th and that would be
acceptable to the court. That employee was subsequently located and questioned by the
Court and reported that she told Objector she could bring the documents in but they were
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to have been filed five (5) court days ahead of time and she did not know if the Court
would accept them. Objector asserts that [a] judge was asked and said it was fine. I am
the judge and was never asked regarding any exhibits and have not been able to find a
judge in probate that was asked that question.” “Objector also asserted that she had
uploaded exhibits into the court’s evidence portal. However, it is quite clear from the
court’s public website that the evidence portal is a pilot project only available to two
courtrooms, at the moment, and C08 is not one of those courtrooms. Trial in this matter
has always been set in C08.”
Weigman noticed an appeal from the July 15, 2021 order.
II
DISCUSSION
Weigman’s appellate briefing is unintelligible. (Cf. Berger v. Godden
(1985) 163 Cal.App.3d 1113, 1119 [“failure of an appellant in a civil action to articulate
any pertinent or intelligible legal argument in an opening brief may, in the discretion of
the court, be deemed an abandonment of the appeal justifying dismissal.”].) California
Rules of Court, rule 8.204(a)(2), provides that the opening brief must: “(A) State the
nature of the action, the relief sought in the trial court, and the judgment or order
appealed from; . . . and (C) Provide a summary of the significant facts limited to matters
in the record.” Weigman’s opening brief does not comply with those requirements. It
does not explain that Weigman is appealing an order approving an accounting. Nor does
it provide a summary in the record of the significant facts relevant to that order.
Additionally, Weigman does not specify how the probate court’s order is
erroneous and why any error is prejudicial. On appeal, this court is required to presume
the trial court’s order is correct and must draw all inferences in favor of the trial court’s
decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “‘[E]rror must be
affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’” (Denham v. Superior Court
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(1970) 2 Cal.3d 557, 564.) Further, we will not presume prejudice from an error. It is an
appellant’s burden to persuade us that the court erred in ways that result in a miscarriage
of justice. (Cal. Const., art. VI, § 13; In re Marriage of Dellaria & Blickman-Dellaria
(2009) 172 Cal.App.4th 196, 204-205.)
Weigman alludes to exclusion of her evidence, but does not acknowledge
the probate court’s evidentiary ruling or provide any record citation. (See In re S.C.
(2006) 138 Cal.App.4th 396, 406-407 [appellate court can deem a contention
unsupported by a record citation to be without foundation and thus forfeited]; see Cal.
Rules of Court, rule 8.204(a)(1)(C) [“Each brief must . . . [s]upport any reference to a
matter in the record by a citation to the volume and page number of the record where the
matter appears”].) Moreover, she does not provide any reasoned argument or authority
on how the excluded evidence would support her objection to the accounting. “Mere
suggestions of error without supporting argument or authority other than general abstract
principles do not properly present grounds for appellate review.” (Department of
Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002)
100 Cal.App.4th 1066, 1078.) Rather, Weigman repeats the allegations she made below
that she was “misled” by a court clerk and harmed by the “manipulation” of the
“evidence portal.” The probate court addressed these claims and found them not
credible. In conclusion, Weigman has not met her appellate burden to demonstrate the
probate court erred in granting Wertz’s petition to approve her accounting. (See Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived”].)
Finally, while we acknowledge a self-represented litigant’s understanding
of the rules on appeal is, as a practical matter, more limited than an experienced appellate
attorney and, whenever possible, we will not strictly apply technical rules of procedure in
a manner that deprives litigants of a hearing, Weigman’s status as an in propria persona
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litigant does not exempt her from the rules of appellate procedure nor relieve her of that
burden on appeal. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
III
DISPOSITION
The order approving the accounting and final distribution is affirmed.
Respondent is entitled to her costs on appeal.
MARKS, J.*
WE CONCUR:
O’LEARY, P.J.
SANCHEZ, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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