Schott v. McMillan CA2/6

Filed 8/24/20 Schott v. McMillan CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
ANDREW SCHOTT, 2d Civ. No. B295693
(Super. Ct. No. 16PR-0250)
Objector and Appellant, (San Luis Obispo County)
v.
SANDRA MCMILLAN,
Respondent.
THE COURT:*
Respondent Sandra McMillan became the successor
trustee of the Schott Family Trust (Trust) after the settlor,
Fred H. Schott (Fred), died in 2015. There are six trust
beneficiaries, including Fred’s son, appellant Andrew
Schott. In 2016, McMillan filed a petition for settlement of
account, which she later supplemented. Appellant
* Yegan, A.P.J, Perren, J. and Tangeman, J.
petitioned to remove McMillan as trustee based on alleged
breaches of fiduciary duty and bad faith. He also objected
to her petition for settlement of account.
Following a contested trial, the court denied
appellant’s petition to remove McMillan, but agreed she
had breached her fiduciary duties by selling Fred’s
engineering business, Fred H. Schott & Associates (FHS),
“with great haste and without an actual professional
appraisal.” She was surcharged $68,528.73 for that breach.
The trial court subsequently approved McMillan’s
final settlement of account but ordered her to pay 5 percent
in prejudgment interest on the surcharge amount and also
half of one of her expert’s fees. Her total debt to the Trust
is $76,621,40.
Appellant, who was represented by counsel in the
trial court, is appearing in propria persona. He appeals
both the order denying his petition to remove McMillan as
trustee and the order approving her final statement of
account. Appellant’s 22-page opening brief includes
statements of the case, appealability and facts but no
argument. Some argumentative dialogue appears in
portions of the brief but, for the most part, appellant’s
specific claims of error are vague and undeveloped. The
table of authorities does not include any page numbers and
many of the authorities, such as the 10 listed cases, do not
appear elsewhere in the brief. Appellant also raises a
nonappealable issue and asserts claims that were not
before the trial court.
In an apparent abundance of caution, McMillan filed
a 57-page brief addressing and discounting any possible
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argument appellant could be attempting to raise. As we
shall explain, this was unnecessary. Based on the
significant deficiencies in appellant’s opening brief, we
conclude he has waived any challenge to the orders on
appeal. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Fred’s nominated successor trustee and daughter,
Wendy Jentsch, initially accepted the trustee position. She
later resigned and nominated McMillan, a professional
trustee. The relevant Trust assets include (1) FHS, (2) a
residence at 520 Chorro Street in San Luis Obispo, (3) a 50
percent interest in property at 3469 Empressa in San Luis
Obispo, (4) property at 3190 Country Club Drive in
Clearlake, (5) a 2015 Mazda vehicle and (6) miscellaneous
personal property.
McMillan received an unsolicited letter of intent
from FTF Engineering, Inc. (“FTF”) to purchase FHS’s
assets. FTF had previously subcontracted significant
engineering work to FHS. McMillan met with FHS staff
and discussed the proposed sale with her attorney and
FHS’s business manager. At that time, FHS was three
months behind in rent.
McMillan determined the business should be
quickly liquidated. She signed the non-binding letter of
intent, which did not include a purchase price. William J.
Osterbauer, a business appraiser, provided McMillan with
a written appraisal. He concluded FHS’s assets had little
to no value and that the business had a significant
negative-net-book value without the FTF subcontracted
work. McMillan believed FTF’s offer was “an answer to a
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prayer” and “a positive thing for . . . the [ T]rust.” She
sold the business to FTF for $1 plus $19,558.27 for FHS’s
June 2015 operating expenses.
Curtis Oeser, a real estate appraiser, valued the
Chorro Street property at $685,000 as of the date of Fred’s
death. McMillan listed the property for $729,000. Built in
1942, the single-family residence needed significant work.
After receiving no offers and feedback that the property
was overpriced, McMillan reduced the price to $699,000.
She received two offers, one for $639,000 and another for
$600,000. She countered both offers at $679,000 and one
buyer accepted. Following a home inspection, McMillan
agreed to a $25,000 price reduction for buyer-requested
repairs. The final sale price was $654,000.
In his petition to remove McMillan as trustee,
appellant alleged she sold FHS and the Chorro Street
property for less than their actual values, mishandled
Fred’s personal property, and failed to properly
communicate with the beneficiaries and to obtain their
approval of her various actions. The trial court rejected all
but one allegation. It determined McMillan had
underestimated the value of FHS’s assets.
Appellant’s expert testified to an appraised value of
$432,640 to $855,762, assigning much of the value to FHS’s
customer list and engineering drawings. McMillan’s expert
assigned a value of $1,821.
Finding both expert opinions “partially unreliable,”
the trial court determined the total business value was
$88,077. After subtracting $19,548.27 for expenses paid as
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part of the sale, the court surcharged McMillan for the
$68,528.73 balance.
At the hearing on the final statement of account, the
trial court considered appellant’s objections to McMillan’s
trustee fees and to the Trust’s payment of her business
appraisal expert’s fees. McMillan requested $41,408.58 in
trustee fees. The court awarded her $38,408.58, noting that
$24,783.81 already had been paid. It reduced the Trust’s
obligation for McMillan’s attorney fees and ordered her to
pay 5 percent in prejudgment interest on the surcharge
amount, i.e., $11,444.30. Notwithstanding its
determination that McMillan had breached her fiduciary
duties, the court found she “attempted to accomplish th[e]
sale [of FHS] reasonably and in good faith to a potentially
legitimate buyer, but . . . did not accomplish this goal as to
the sale price.”
The trial court also required McMillan to pay one half
of her appraisal expert’s fees. As a result, McMillan owes
the Trust $76,621.40.
DISCUSSION
“Whether legal or factual, no error warrants reversal
unless the appellant can show injury from the error.
[Citation.]” (City of Santa Maria v. Adam (2012) 211
Cal.App.4th 266, 286.) “[T]o demonstrate error, an
appellant must supply the reviewing court with some
cogent argument supported by legal analysis.” (Id. at pp.
286-287.) “[W]e may disregard conclusory arguments that
are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the
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conclusions he wants us to adopt. [Citations.]” (Id. at
p. 287.)
Appellant acknowledges in his opening brief that he
cannot afford further legal fees and “apologize[s] if the
format is not perfectly prepared.” While we recognize the
difficulties self-represented appellants often face, they are
held to the same standards as attorneys. (Kobayashi v.
Superior Court (2009) 175 Cal.App.4th 536, 543; Barton v.
New United Motor Manufacturing, Inc. (1996) 43
Cal.App.4th 1200, 1210 [A self-represented litigant is
“treated like any other party and is entitled to the same,
but no greater consideration than other litigants and
attorneys”]; see Rappleyea v. Campbell (1994) 8 Cal.4th
975, 985 [“A doctrine generally requiring or permitting
exceptional treatment of parties who represent themselves
would lead to a quagmire in the trial courts, and would be
unfair to the other parties to litigation”].)
As McMillan points out, appellant’s statements of the
case and facts are incomplete and improperly one-sided
(see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246), but
the dearth of legal analysis is particularly unacceptable.
(See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th
993, 1011.) “One cannot simply say the [trial] court erred,
and leave it up to the appellate court to figure out why.
[Citation.]” (Niko v. Foreman (2006) 144 Cal.App.4th 344,
368 (Niko).) Neither this court nor the respondent has duty
to “‘act as [appellant’s] counsel . . . and [to] furnish a legal
argument as to how the trial court’s rulings . . . constituted
an abuse of discretion’ [citation], or a mistake of law [or
fact].” (Ibid.)
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Accordingly, we do not address arguments that may
be buried in the opening brief’s statement of the case or
statement of facts. A brief must “[s]tate each point under a
separate heading or subheading summarizing the point,
and support each point by argument and, if possible, by
citation of authority.” (Cal. Rules of Court, rule
8.204(a)(1)(B).) This rule “‘lighten[s]the labors of the
appellate [courts] by requiring . . . litigants to present their
cause systematically and so arranged that those upon
whom the duty devolves of ascertaining the rule of law to
apply may be advised, as they read, of the exact question
under consideration, instead of being compelled to extricate
it from the mass.’ [Citation.]” (Opdyk v. California Horse
Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)
We recognize appellant has provided a somewhat more
expanded discussion of two issues: the trial court’s earlier
denial of his motion for change of venue and a judicial bias
claim. But neither issue is properly before us. An order
denying a change of venue request is subject to writ review
and may not be challenged on appeal. (Code Civ. Proc., § 400;
Calhoun v. Vallejo City Unified School Dist. (1993) 20
Cal.App.4th 39, 41, disapproved on other grounds by K.J. v.
Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 888, fn.
6.) As for the judicial bias claim, it was not raised in the trial
court and may not be considered for the first time on appeal.
(Code of Civ. Proc., §170.3, subd. (c)(1); Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218; In re
Steven O. (1991) 229 Cal.App.3d 46, 55.)
Appellant’s “suggestions of error without supporting
argument or authority other than general abstract
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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.) In the absence of a cogent
explanation of how the trial court committed error in either
of the two challenged orders, we conclude the deficiencies
in his opening brief preclude review of those orders. (See
Niko, supra, 144 Cal.App.4th at p. 368.)
DISPOSITION
The trial court’s orders are affirmed. McMillan shall
recover her costs on appeal.
NOT TO BE PUBLISHED.
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Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Andrew Schott, in pro. per., for Appellant.
Barnick Hodges Law Corporation, John F. Hodges;
Whitney Northington Barnick; Law Office of Greg A. Coates,
Greg A. Coates, for Respondent.
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