Conservatorship of Migliore CA2/5

Filed 6/24/16 Conservatorship of Migliore CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
Conservatorship of the Estate of MERIK B264658
MIGLIORE.
(Los Angeles County
Super. Ct. No. LP014237)
REBECCA MARTENS,
Petitioner and Appellant,
v.
LEANNE MAILLIAN, as Guardian ad
Litem,
Objector and Respondent.
APPEAL from orders of the Superior Court of the Los Angeles County, Daniel S.
Murphy, Judge. Affirmed.
Rebecca Martens, in pro. per., for Petitioner and Appellant.
No appearance for Objector and Respondent.
Plaintiff, Rebecca Martens, appeals from several orders issued by the probate
court on June 16, 2015, including: denying her motion to be appointed trustee of her
minor son’s special needs trust; denying her motion that the current trustee be instructed
to sell certain real property; and denying her motion to be appointed guardian ad litem for
her son.
On appeal, a judgment or final order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956.) All intendments and presumptions are made to support the
judgment or final order on matters as to which the record is silent. (Denham v. Superior
Court, supra, 2 Cal.3d at p. 564; Cahill v. San Diego Gas & Electric Co., supra, 194
Cal.App.4th at p. 956.) Here, there is no reporter’s transcript of the hearing. Plaintiff
fails to provide any adequate substitute such as a settled or agreed statement of the
hearing. Appellate courts have refused to reach the merits of an appellant’s claim
because no reporter’s transcript of a pertinent proceeding or a suitable substitute was
provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order];
Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing];
Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial
motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether
counsel was waived and the minor consented to informal adjudication]; Foust v. San Jose
Const. Co., Inc. (2011) 198 Cal.App.4th 181, 185–188 [appeal solely on partial clerk’s
transcript]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript
of judge’s ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist.
(2000) 79 Cal.App.4th 440, 447 [trial transcript when attorneys fees sought]; Estate of
Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49
Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance
Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing];
Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1076-1077 [legal issue
arising during preliminary injunction hearing]; Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1532-1533 [reporter’s transcript fails to reflect content of special
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instructions]; Buckhart v. San Francisco Residential Rent Stabilization and Arbitration
Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc. § 1094.5 petition];
Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary
injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 711-712 [demurrer
hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of
argument to jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462-463 [failure to
secure reporter’s transcript or settled statement as to offers of proof].) These courts have
refused to reach the merits of an appellant’s claim absent a reporter’s transcript or a
suitable substitute because error is never presumed. (Null v. City of Los Angeles, supra,
206 Cal.App.3d at p. 1532; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.) An
appellant must affirmatively establish error by an adequate record. (Foust v. San Jose
Const. Co., Inc., supra, 198 Cal.App.4th at p. 187; Osgood v. Landon (2005) 127
Cal.App.4th 425, 435; Park Place Estates Homeowners Assn. v. Naber (1994) 29
Cal.App.4th 427, 433; Null v. City of Los Angeles, supra, 206 Cal.App.3d at p. 1532.) In
other words, it is an appellant’s burden to provide an adequate record on appeal. (Ballard
v. Uribe, supra, 41 Cal.3d at pp. 574-575; Foust v. San Jose Const. Co., Inc., supra, 198
Cal.App.4th at p. 187; Null v. City of Los Angeles, supra, 206 Cal.App.3d at pp. 1532–
1533.)
The record fails to include most of the relevant papers. Failure to provide an
adequate record on an issue requires that issue to be resolved against the appellant.
(Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; Oliviera v. Kiesler (2012) 206
Cal.App.4th 1349, 1362; Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th
28, 46.) Plaintiff also fails to provide argument and legal authority for each point raised
in her brief. It is not this court’s role to construct theories or arguments that would
undermine the presumption of correctness here. (Cahill v. San Diego Gas & Electric Co.,
supra, 194 Cal.App.4th at p. 956; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)
At oral argument, plaintiff made unsubstantiated allegations of misconduct by
various public employees. No evidence supports any of these misconduct allegations.
Also, plaintiff requested that the conservatee be permitted to address the court. The
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conservatee, a minor, has not filed a brief. The conservator and the guardian ad litem had
not retained counsel for purposes of this appeal. Thus, the conservatee could not address
the court. (Code Civ. Proc., § 372, subd. (a)(1); J.W. v. Superior Court (1993) 17
Cal.App.4th 958, 964.)
The June 16, 2015 orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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