Schott v. McMillan CA2/6

California Court of Appeal Aug 24, 2020 No. B295693Unpublished

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Holding. The appellate court affirmed the trial court's orders, holding that the appellant waived his challenges to the orders on appeal due to significant deficiencies in his opening brief, including a lack of cogent legal argument and failure to cite pertinent authority.

Issues

Whether the appellant's opening brief provided sufficient legal argument and authority to warrant appellate review of the trial court's orders.
Whether an order denying a change of venue is subject to appellate review.
Whether a claim of judicial bias not raised in the trial court may be considered for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Based on the significant deficiencies in appellant’s opening brief, we conclude he has waived any challenge to the orders on appeal.”

“One cannot simply say the [trial] court erred, and leave it up to the appellate court to figure out why.”

“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.”

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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

Schott v. McMillan CA2/6

AI Brief

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SANDRA MCMILLAN,

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