Rickey v. Nielsen CA4/1

Opinion

Filed 9/21/26 Rickey v. Nielsen CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TRACY LYNN RICKEY, D086436

Appellant, (Super. Ct. No. 37-2015- 00029072-PR-TR-CTL) v. JAN NIELSEN et al., Respondents.

APPEAL from an order of the Superior Court of San Diego County, Olga Alvarez, Judge. Affirmed. Tracy Lynn Rickey, in pro. per., for Appellant. Henderson, Caverly & Pum, Kristen E. Caverly, and Lisa B. Roper for Respondents.

Tracy Lynn Rickey appeals from the probate court’s order sustaining a demurrer to her “First Amended Petition to Mandate” reimbursements and distributions from two trusts and objecting to accountings of the trusts in 2021 and 2022. Rickey, who is self-represented, has not shown the probate court erred by sustaining the demurrer. Accordingly, the order is affirmed. FACTUAL AND PROCEDURAL BACKGROUND Jan Nielsen, Rickey’s mother, created the Tracy L. Rickey 2003 Trust (2003 Trust) for Rickey’s benefit. The trust was drafted by Nancy Henderson, and appointed Nielsen’s brother, Kurt Nielsen, as the trustee. In 2015, Kurt filed a petition in the probate division of the San Diego Superior Court seeking to (1) approve three accountings of the 2003 Trust by Kurt that were completed according to its terms and (2) release Kurt from liability, accountability and responsibility during the four accounting periods under Probate Code sections 15644, 16062, 16063 and 17200, subdivision (b)(5).1 There was no objection or opposition to Kurt’s petition, and on December 18, 2015, the probate court granted the petition. In its order, the court approved the accountings for the periods of (1) July 1, 2008 through May 21, 2013, (2) June 1, 2013 through December 21, 2014, and (3) January 1, 2015 through June 30, 2015. The order also relieved Kurt of “liability, accountability, and responsibility for his acts, elections not to act, and transactions as the sole trustee during the” same three “accounting periods.” On May 6, 2024, Rickey, in propria persona, filed the underlying petition in the same probate matter.2 In her petition, Rickey sought reimbursements and distributions from the 2003 Trust and another trust created for her benefit, the Tracey Rickey S.D. 2015 Trust (2015 Trust). In 1 First names are used in the interest of readability and to avoid confusion. No disrespect is intended.

2 As the respondents point out, the petition was 212 pages long and attached over 1,300 pages of exhibits, including multiple copies of the trust documents.

2 addition, the petition contained “Objections to the 2021 Accounting” of the 2003 Trust “done by Susanna Starcevic,” who was the trustee at the time, “Gregory Borawski, Jan Nielsen, and Nancy Henderson,” and “Objections to the 2022 Accounting” of the 2015 Trust “done by Lisa Schneiderman, The South Dakota Trust Company, Jan Nielsen and Nancy Henderson.” In response to Rickey’s petition, Jan, Kurt, and Henderson filed a demurrer under Code of Civil Procedure section 430.10, subdivisions (e) and (f), and section 425.10, subdivision (a)(1), asserting Rickey had failed to state a claim for relief. In addition, they asserted the petition was barred by the doctrine of res judicata based on the probate court’s 2015 order approving Kurt’s petition to affirm the accountings. They also argued that the petition was barred by the statute of limitations under Code of Civil Procedure section 338, subdivision (d), section 340.6, subdivision (a), and section 343.3 Rickey opposed the motion and a hearing, that was not reported, took place on October 30, 2024. After the hearing, the probate court sustained the demurrer with leave to amend.

3 Rickey also named the South Dakota Trust Company (SDTC) as a defendant in her petition and SDTC filed a motion to quash service of process for lack of personal jurisdiction. The probate court’s register of action contained in the appellate record shows the motion was not resolved before the court issued the order that is the subject of this appeal. On December 22, 2025, Rickey filed a motion to augment the appellate record with various documents, including a copy of SDTC’s reply brief to its motion to quash. Thereafter, we issued an order on the motion to augment deferring a ruling to this panel. Because it is not relevant to Rickey’s appeal, the motion to augment the record with SDTC’s reply brief to the motion to quash is denied. (See Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 696, fn. 4 [denying augmentation because materials not relevant to issues on appeal].)

3 The following month, Rickey, who continued to be unrepresented by legal counsel, filed an amended petition seeking the same relief requested in her initial petition. The amended petition is 271 pages long, is very difficult to comprehend, and includes over 1,000 pages of exhibits. The Nielsens and Henderson filed a second demurrer on the same grounds asserted in their earlier demurrer, which Rickey opposed. Thereafter, the court issued a tentative ruling sustaining the demurrer on the grounds that the amended petition failed to address the deficiencies previously found by the court, Rickey had not stated any cognizable claim for relief, and the petition was vague and uncertain. A hearing on the demurrer, which was not reported, took place on April 9, 2025.4 At the conclusion of the hearing, the court adopted its tentative ruling and sustained the demurrer. The order explained that to the extent the court understood Rickey’s claims, she sought distributions from the 2003 and 2015 Trusts, and she objected to the accountings prepared in 2021 and 2022. The court found these grievances were not legally cognizable claims. The court explained Rickey had not provided sufficient “factual allegations to support any viable claims against Respondents, particularly against attorneys Henderson and 4 After Rickey filed her notice of appeal, she obtained a settled statement in accordance with California Rules of Court, rule 8.137 that is included in the record on appeal prepared by the probate court. The settled statement covers that hearing, as well as three prior hearings, including the hearing on the respondents’ first demurrer. In her briefing, Rickey mentions repeatedly this court’s order denying her motion to augment the record with the pleadings filed in the probate court to obtain the settled statement. However, the settled statement included in the record contains the version of the statement prepared by Rickey, the respondents’ suggested revisions to her proposal, and the final settled statement adopted by the probate court.

4 Borawski, who did not serve as trustees.” Further, the court concluded that to the extent the petition sought relief based on breach of fiduciary duty, the allegations were unclear. The probate court also noted the petition “consists of discussions regarding self-representation, constitutional law and due process violations, conservatorship law, and civil jury instructions, which add to the confusion regarding the claims in the [petition]. As such, the allegations are vague and uncertain, and the [petition] fails to state sufficient facts to sustain causes of action against Respondents.” The probate court found that to the extent Rickey intended to assert claims relating to matters occurring before the court’s December 18, 2015 order, those claims were “barred by res judicata and the applicable statute of limitations.” The court further found that while the petition alleged a scheme to defraud Rickey, it was “not sufficiently pled such that the Court [could] discern legally cognizable claims.” Finally, the court noted that objections to the 2021 and 2022 accountings also appeared to be barred by res judicata, pointing to the notice of entry of order from a South Dakota court submitted by Rickey as an attachment to the petition, which approved the 2022 accounting for the 2015 Trust. Rickey timely appealed from the probate court’s order. DISCUSSION Like the briefing that Rickey filed in the trial court, her appellate briefing is extremely difficult to decipher. To the best of our ability to discern her assertions, Rickey argues the probate court failed to adequately consider the arguments she submitted, which she contends violated her rights under the United States and California Constitutions. Similarly, she argues the 5 court violated her due process and equal protection rights by not considering the exhibits she incorporated into her petition. Rickey next appears to argue that to the extent the court found her claims were barred by the statute of limitations, this finding violated her due process rights and infringed her rights to access justice. She specifically asserts that “application of res judicata to the September 2022 South Dakota petition infringed her due process and equal protection rights.” Similarly, she argues the court violated her due process rights by applying res judicata to “2015 accountings signed in 2015 and 2016.” Rickey also argues that she was denied the ability to video record the oral proceedings, which she asserts violated her rights to access and due process. In an argument she also set forth in her petitions in the probate court, Rickey asserts that Assembly Bill No. 1194 “is an under-inclusive law whose under-inclusion violates Fourteenth Amendment equal protection rights” and the California Constitution. Finally, Rickey argues that the probate court’s failure to appoint counsel for her violated her due process rights. I Legal Standards As the appellant, Rickey has the burden of providing an adequate record, of showing that an error occurred, and of showing the error was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) In addition, arguments on appeal are restricted to documents in the record, and we generally may not consider references to matters outside the record. (Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s opening brief must provide a summary of significant facts limited to matters in the record on appeal].)

6 Absent an adequate record and argument to demonstrate error, a reviewing court presumes the judgment or order is supported by the evidence and that the lower court correctly applied the law. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136–1137; see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [It is a “cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown.”]) In addition, “[i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules.” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; see also First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [“A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.’ ”].) “[W]hen a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) For any appellant, “[a]ppellate briefs must provide argument and legal authority for the positions taken. ‘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.’ ” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) “We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830;

7 Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119 [lack of reasoned argument may constitute abandonment of appeal, justifying dismissal].) Under these general rules of appellate procedure, we examine the probate court’s order sustaining the respondents’ demurrer without leave to amend. “ ‘ “The purpose of a demurrer is to test the sufficiency of a complaint by raising questions of law.” ’ ” (Frayo v. Martin (2024) 102 Cal.App.5th 1025, 1032.) “ ‘In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.’ [Citation.] ‘ “ ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.” ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” ’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) When a trial court sustains a demurrer “ ‘without leave to amend, we decide whether [the appellant has shown] there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.’ ” (County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034, 1041.) II Analysis A Rickey first asserts that the probate court violated her constitutional rights because it did not sufficiently evaluate her amended petition. For example, she states the probate court’s statement that she failed to plead around the court’s prior ruling that her “claims relating to matters that occurred prior to [the] December 18, 2015 [order] are barred by res judicata 8 and the applicable statute[] of limitation,” suggests the court “automatically transferred” its prior demurrer decision to the current decision. Rickey also argues that the court’s inability to comprehend her amended petition resulted from her own lack of understanding as to why her prior petition was deficient. Rickey states that the court should have appointed her a “legal interpreter” so she could understand the proceedings. Rickey’s arguments provide no basis for this court to understand what claims she is attempting to assert in her petition or on what basis the probate court’s decision to sustain the demurrer constituted error. She repeats vague allegations that she “specified the defendants and their collusive malfeasance” and states that “the only facts missing are those necessarily held by defendants.” These statements, however, do not provide us with any greater understanding of how Rickey was defrauded by the former trustee, her mother, or the attorneys who drafted the trusts. And her arguments provide no basis for us to surmise how the probate court erred. Contrary to Rickey’s assertion, it is not this court’s role to develop arguments for an appellant, even a self-represented litigant like her. (See Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 600, disapproved on another ground in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011 [“it is not this court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness”].) As with Rickey’s complaint that the probate court failed to consider her amended petition, her assertion that the court did not consider the exhibits she submitted with her petition also does not provide us with a basis to overturn the probate court’s order. She does not explain how those exhibits support any claim or what specifically within the exhibits the probate court failed to consider. As stated, we cannot develop factual or legal arguments 9 for Rickey and we must presume the probate court considered the facts before it. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez) [“ ‘[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.’ [Citation.] ‘We are not obliged to make other arguments for [appellant] [citation], nor are we obliged to speculate about which issues counsel intend to raise.’ ”].) Rickey also provides citations to Stansfield v. Starkey (1990) 220 Cal.App.3d 59 and Frantz v. Blackwell (1987) 189 Cal.App.3d 91 to support her assertion the probate court did not adequately consider her exhibits. She does not explain, however, how these cases support her assertions of error. Stansfield affirmed a judgment after the trial court sustained the defendants’ demurrer to the plaintiff’s fifth amended complaint, holding the plaintiff had failed to show an abuse of discretion or that the claims could be adequately amended. (Stansfield, at p. 63.) Likewise, Frantz affirmed a judgment entered after the court sustained a demurrer on the grounds that the plaintiff had failed to plead sufficient facts to support his claim for discrimination, where the claims were based not on a particular characteristic of the plaintiff but on the defendant’s decision not to sell property to speculators. (Frantz, at p. 95.) Neither case has any relevance to the present appeal. B Rickey next argues the probate court’s application of the statute of limitations to bar her claims violated her constitutional rights. She contends that Henderson and her mother engaged in a continuous act of deception and, therefore, the statute of limitation does not apply. However, she provides no legal basis for this assertion and does not point to any factual allegations in her petition to support this claim, or otherwise explain the circumstances of 10 the alleged fraud. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand) [“ ‘an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record’ ”].) Rickey also asserts that her failure to obtain counsel delayed her discovery of the facts needed to substantiate her claims, and that she did not assert her claims earlier because she feared it would jeopardize the payments she was receiving from the trusts. Again, these vague assertions of misconduct provide no legal basis to reverse the probate court’s finding that to the extent Rickey’s claims concern conduct arising before 2015, such allegations are barred by any applicable statues of limitations. (United Grand, supra, 36 Cal.App.5th at p. 146.) C Rickey next asserts that “Application of Res Judicata to the September 2022 South Dakota Petition Infringes Due Process and Equal Protection Rights.” This section of Rickey’s brief is extremely confusing and difficult to discern. Rickey states that the court did not reach the issue of jurisdiction, but this issue “overlap[s] with [her] arguments against res judicata.” She then states “honoring the 2022 SD Petition makes a safe haven of South Dakota” in violation of the constitution. We are unable to determine what this section of Rickey’s brief means and cannot find within it any possible basis to reverse the probate court’s order. (Hernandez, supra, 37 Cal.App.5th at p. 277.) D Rickey’s next argument concerns the probate court’s denial of her request to video-record the proceedings, which she contends was a violation of her due process rights and her right to access justice. Rickey also asserts 11 that this court should invalidate Government Code section 69957 and Assembly Bill No. 882 “to the extent they undermine these rights.” As the respondents point out, Rickey does not provide any authority for her assertion that the court erred by denying her request to record the proceedings. Further, Rickey acknowledges Government Code section 69957 authorizes only limited electronic court reporting and did not allow for recording of the demurrer hearing.5 Instead, Rickey asserts that under Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), she was entitled to a court reporter at no cost because she is an indigent litigant. To support this assertion, she points to the court’s order denying her request for a fee waiver and instituting a payment plan of $50 per month to pay applicable court fees. We do not agree with Rickey that the probate court’s decision to provide a payment plan equated to a finding she was entitled to a fee waiver, and therefore a court reporter at no cost. In Jameson, the California Supreme Court held the trial court could not withhold court reporter services from in forma pauperis litigants, i.e. litigants with fee waivers in place, where litigants who can afford to pay for private court reporters are permitted to obtain those services. (Jameson, supra, 5 Cal.5th at p. 612.) Here, Rickey 5 The statute provides in pertinent part, “If an official reporter or an official reporter pro tempore is unavailable to report an action or proceeding in a court, subject to the availability of approved equipment and equipment monitors, the court may order that, in a limited civil case, or a misdemeanor or infraction case, the action or proceeding be electronically recorded, including all the testimony, the objections made, the ruling of the court, the exceptions taken, all arraignments, pleas, and sentences of defendants in criminal cases, the arguments of the attorneys to the jury, and all statements and remarks made and oral instructions given by the judge. A transcript derived from an electronic recording may be utilized whenever a transcript of court proceedings is required.” (Gov. Code, § 69957, subd. (a).)

12 did not have a fee waiver in place; thus, Jameson did not mandate the probate court provide her with a reporter at no cost. Further, Rickey successfully obtained settled statements for both demurrer hearings, diminishing her need for reporters’ transcripts. (See Cal. Rules of Court, rule 8.137(a) [“A settled statement is a summary of the superior court proceedings approved by the superior court.”].) With respect to the constitutionality of Government Code section 69957, Rickey has not provided this court with any cogent argument to overturn this provision. Her general assertions that the law violates the Federal and California constitutions do not provide us with a basis to hold the law invalid generally or as applied to Rickey’s case. (See Hernandez, supra, 37 Cal.App.5th at p. 277 [“ ‘When an appellant raises an issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ’ ”].) Assembly Bill No. 882, which was introduced in the Legislature last year, would broaden the availability of electronic recording in court proceedings. (See Sen. Judiciary Com., Analysis of Assem. Bill No. 882 (2025–2026 Reg. Sess.) as amended July 17, 2025.) The legislation, however, has not been made law and, thus, has no applicability in this case. E In the next section of her brief, Rickey asserts that Assembly Bill No. 1194, which reformed California’s law of conservatorships, is unconstitutional. This argument has no relationship to Rickey’s petition, which she brings as the beneficiary of a trust and which does not involve a conservatorship. Further, Rickey’s briefing does not relate the legislation to her claims in any logical way. Accordingly, this section of Rickey’s briefing 13 provides us with no basis to reverse the probate court’s order sustaining the respondents’ demurrer. (Hernandez, supra, 37 Cal.App.5th at p. 277.) F Rickey’s final argument is that the court’s failure to appoint her an attorney violated her due process rights. This argument does not support reversal of the probate court’s order. “[T]he general rule is that there is no due process right to counsel in civil cases.” (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116; accord Iraheta v. Superior Court (1999) 70 Cal.App.4th 1500, 1508.) The right of an indigent litigant to appointed counsel generally “has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 25 (Lassiter).) When loss of physical liberty is not at stake, factors relevant to the determination of whether due process requires appointment of counsel for an indigent litigant are “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” (Lassiter, at p. 27.) Courts “must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” (Ibid.) Here, Rickey asserts that she was entitled to appointed counsel because she “cannot uncover the facts for Court” and because of fundamental unfairness. She makes no reference to the applicable balancing test and otherwise provides no legal basis to support her contention that reversal is required because she should have been afforded an attorney. Her briefing instead discusses matters that bear no relation to her underlying petition. For instance, she includes a discussion of forced sterilization in North Carolina; a long section, citing Lassiter and Turner v. Rogers (2011) 564 14 U.S.431 (Turner)6, equating racial discrimination with discrimination based on mental health; and an argument that this court should abolish the California Bar Association because the fees of the attorneys she contacted for representation are too high. Rickey has not provided any reasonable argument to support her assertion that the court erred by denying her requests for appointed counsel. DISPOSITION The order is affirmed. Costs of appeal are awarded to Respondents.

MCCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

DO, J.

6 In Lassiter, the United States Supreme Court held that an indigent parent’s due process rights were not violated by the trial court’s failure to appoint counsel for her in a proceeding to terminate her parental rights. (Lassiter, supra, 452 U.S. at p. 33.) Turner addressed the right to counsel in child support proceedings that could statutorily result in incarceration. Turner held that where a “custodial parent (entitled to receive [child] support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But … the State must nonetheless have in place alternative procedures that ensure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.” (Turner, supra, 564 U.S. at p. 435.)