Opinion
H046137
10-29-2019
Conservatorship of the Person and Estate of VICTORIA TODD. VIATCHESLAV BOIKO, Petitioner and Appellant, v. SANTA CRUZ COUNTY PUBLIC GUARDIAN, Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. PR046276)
Appellant Viatcheslav Boiko appeals from an order denying his petition for appointment as the probate conservator of the person and estate of Victoria Todd, his daughter. The order is affirmed.
I. Factual and Procedural Background
In 2014, Ludmila Boiko, Todd's mother, sought to be appointed the temporary probate conservator of Todd's person. The petition was denied.
On August 16, 2017, respondent Santa Cruz County Public Guardian was appointed Todd's conservator under the provisions of the Lanterman-Petris-Short Act (LPS). On October 24, 2017, respondent was appointed the permanent LPS conservator for one year.
On May 30, 2018, appellant sought to be appointed the temporary and permanent probate conservator of Todd's person and estate. He also filed an ex parte application for good cause to excuse providing notice to respondent of the hearing on the petition. The trial court denied the application to dispense with notice, ordered that notice be provided to respondent and Todd, and set a hearing on the temporary conservatorship on June 11, 2018.
On May 30, 2018, Boiko filed a motion to disqualify Judge John Gallagher. The motion was granted on June 4, 2018.
On June 7, 2018, respondent filed opposition to the petition for appointment of a temporary conservator. The opposition alleged: respondent was, and had been, the LPS conservator of Todd's person since June 5, 2014; the LPS conservatorship was necessary to place Todd in a mental health facility; there was no estate to manage; and respondent had learned from Todd that she did not want to appear at the hearing and she opposed any parental control over her affairs.
On June 11, 2018, the petition for temporary conservatorship of the person and estate was denied.
On July 17, 2018, respondent filed opposition to the appointment of a permanent conservator and alleged the same reasons as set forth in the opposition to the petition for temporary conservatorship.
Following a hearing on August 27, 2018, the petition for appointment of a probate conservator was denied.
The LPS conservatorship expired on October 24, 2018.
Appellant filed a timely notice of appeal.
This court deemed appellant's motion to augment on appeal as a request for judicial notice and granted it in part. This court took judicial notice of the petition to remove filed on September 4, 2018, and a declaration filed on October 23, 2018, in case No. 15MH00017. These documents were filed after appellant filed his notice of appeal and are not relevant to the present appeal.
II. Discussion
Appellant contends that the present case involves a miscarriage of justice due to the illegal conduct of respondent, which was covered up by the "hypocrisy, corruption, illegitimacy of County Counsel," and that the judges in Santa Cruz County were biased against him. He asserts that "[t]here is not enough vocabulary to vocalize the torture, assault and battery at the hands of Law Enforcement, [respondent] and Behavioral Health Department." He further asserts that respondent, the "Behavioral Health Division, County Counsel and Judges" arranged Todd's "kidnapping for illegal involuntary treatment."
Appellant also contends that the trial court did not question him and that respondent prohibited Todd from attending the hearing.
A fundamental rule of appellate review is that " '[a] judgment or order of the lower court is presumed correct' " and " 'error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness. The party asserting error must also "designate an adequate record." (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858, fn. 13, italics added.) "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)
Here, the appellate record is inadequate. Since appellant has failed to provide a reporter's transcript of the hearing before the court, we are unable to determine what issues he raised and evidence he presented. As respondent points out, appellant also failed to include, among other things: proof of service of the citation for conservatorship and a copy of the petition to Todd (Prob. Code, §§ 1823, subd. (a), 1824); a capacity declaration by a physician that Todd lacked the capacity to give an informed consent for medical treatment (Prob. Code, § 1890, subd. (c)); and a confidential supplemental information form (Prob. Code, § 1821). Thus, appellant has failed to carry his burden to show error by the court when it denied his petition.
In addition, "[i]t is the duty of counsel by argument and the citation of authorities to show that the claimed error exists." (In re Estate of Randall (1924) 194 Cal. 725, 728.) Self-represented parties are held to the same standards as parties who are represented by counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) An appellate 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).) "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. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Here, appellant has failed to cite to any portion of the record on appeal. He has also failed to support his claims with "reasoned argument and citations to authority." (Id. at p. 784.) Thus, his claims have been waived.
In his reply brief, appellant argues for the first time that this matter required service of documents on the Attorney General pursuant to California Rules of Court, rule 8.29, because it involves a constitutional challenge. " 'Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' [Citation.]" (Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 720, fn. 10.) In any event, his argument has no merit. "[A] party must serve its brief or petition on the Attorney General if the brief or petition: [¶] (1) Questions the constitutionality of a state statute; . . ." (Cal. Rules of Court, rule 8.29(c)(1).) Here, appellant has not challenged the constitutionality of a statute. --------
III. Disposition
The order is affirmed. Costs on appeal are awarded to respondent.
/s/_________
Mihara, Acting P. J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.