BAMATTRE-MANOUKIAN, ACTING P.J.
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. PR2100069
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
On August 24, 2021, M. Nicole Fore (Fore) filed a petition for probate for authorization to administer under the Independent Administration of Estates Act (the petition) in connection with Estate of Michael Derik Marxsen (decedent). According to the petition, decedent passed away on August 9, 2021, leaving a will dated August 4, 2021. The petition reflects that Fore was decedent's fiancee, and that appellant Sheryl L. Benevento (Benevento) is decedent's mother. On October 14, 2021, the court approved the petition, appointing Fore as administrator with will annexed and fixing a bond at $110,886. Letters of administration with will annexed were issued the next day.
Benevento thereafter filed a notice of appeal. We will affirm the order.
The notice of appeal does not identify the judgment or order from which the appeal is taken. Instead, it reflects (improperly) that it is an appeal from a "[j]udgment or court trial." Liberally construing the notice of appeal (Cal. Rules of Court, rule 8.100 (a)(2)), it is apparent that Benevento is challenging the court's order granting the petition appointing Fore as administrator with will annexed, which is an appealable order. (See Prob. Code, § 1303, subd. (a).)
II. DISCUSSION
Benevento's appeal is from the October 14, 2021 order appointing Fore as administrator with will annexed (the Order). Her appellate brief, however, does not identify or directly assert any claim of error by the probate court with respect to the issuance of the Order.
Under the heading "Statement of the Case" (capitalization omitted), Benevento states in her appellate brief that she and other family members appeared in court on October 14, 2021, "only to find [the case] was removed from the schedule since the presiding judge had made a ruling at 4pm on October 13, 2021." She does not argue in her appellate brief that the court erred in this respect. The record reflects that the court issued a tentative ruling on October 13 granting the petition, it received no objection by 4:00 p.m. that day, and that it therefore adopted the tentative ruling. (See Cal. Rules of Court, rule 3.1308(a)(1) [authorizing superior courts to adopt tentative ruling system under which, if a tentative ruling is posted "by no later than 3:00 p.m. the court day before the scheduled hearing. . . [and i]f the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear"].)
Benevento contends that "Fore (1) [h]as shown reckless behavior that makes her incapable of executing the duties as administrator[; and] (2) [has m]ismanage[d decedent's] estate." Benevento asserts that "Fore has shown reckless behavior that is not conducive to performing or executing her duties as administrator." The conduct, as alleged in Benevento's appellate brief, includes, inter alia, Fore (1) driving without a license a vehicle of the estate, (2) operating the business of the decedent without a license, (3) failing to make payments on one or more loans involving vehicles of the estate, and (4) failing to pay insurance premiums for vehicles of the estate. Although Benevento asserts that Fore's alleged acts of misconduct are facts that she can establish, the factual assertions are not supported by any citations to the appellate record. The failure to include citations to the record constitutes a violation of rule 8.204(a)(1)(C) of the California Rules of Court, which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Benevento's failure to support the factual claims in support of her position justifies the appellate court to "simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 407.)
Benevento argues that "[t]he evidence presented supports [Fore's] removal because she is not otherwise qualified to act as administrator." In so urging, Benevento cites Probate Code section 8502. Benevento indicates that she should be appointed administrator if the proceeding is not dismissed outright.
The matter of the potential removal of Fore as administrator of the estate is not properly before this court. “The probate court or judge is the guardian of estates of deceased persons and all proceedings are under the direction of the judge. An executor or administrator derives his power to act from the order of the court." (County of Los Angeles v. Morrison (1940) 15 Cal.2d 368, 371.) The probate court is vested with the power to remove a personal representative of the estate. (Luckey v. Superior Court of Los Angeles County (1930) 209 Cal. 360, 370; see Prob. Code, § 8500.) Under Probate Code section 8502, the probate court may remove the personal representative of the estate for reasons that include acts of waste, embezzlement, mismanagement, or fraud (id., subd. (a)), where the personal representative is incapable of serving the estate (id., subd. (b)), or where he or she "has wrongfully neglected the estate" (id., subd. (c)).
There is nothing in the record indicating that Benevento previously sought an order of the probate court under Probate Code section 8500 et seq. for removal of Fore as administrator of the estate. That is the remedy Benevento should employ in furtherance of her position as stated here in her appellate brief. Our decision affirming the Order shall in no way prejudice Benevento's right to seek appropriate relief in the probate court.
III. DISPOSITION
The October 14, 2021 order appointing M. Nicole Fore as administrator with will annexed is affirmed.
WE CONCUR: DANNER, J. WILSON, J.