Opinion
G056805
06-10-2020
Conservatorship of the Person and Estate of EDWARD RAYMOND. DARLENE AZAR, as Conservator, etc., Petitioner and Respondent, v. DAWNA LUDWIG, Objector and Appellant.
James G. LeBloch, for Objector and Appellant. No appearance for Petitioner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00830742) OPINION Appeal from an order of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed in part, dismissed in part. James G. LeBloch, for Objector and Appellant. No appearance for Petitioner and Respondent.
INTRODUCTION
Dawna Ludwig is ostensibly the sole appellant in this case regarding dueling petitions to become the conservator of Edward Raymond. Ludwig is Raymond's second wife. The other petitioner is Raymond's daughter by his first marriage, respondent Darlene Azar. The trial court chose Azar to be Raymond's conservator, and Ludwig has appealed that choice.
There is, however, another person attempting to assert an appellate issue on his own behalf - Attorney James LeBloch, who is representing Ludwig in this appeal. He complains the court erred by not allowing him to represent Raymond in the conservatorship proceedings, instead of appointing a public defender as Raymond's attorney. LeBloch has identified three other issues regarding the evidence considered during the conservatorship hearing.
To the extent LeBloch is appealing on his own behalf - which appears to be the case - the appeal is dismissed. LeBloch is not a party to this proceeding, and he has no standing to appeal on his own behalf. He also does not represent the conservatee, Raymond, so he has no authority to speak for Raymond. The obvious conflict of interest represented by his current representation of one of the adversarial parties - Ludwig - would also militate against his appointment as Raymond's attorney, even if we could consider such a thing.
As for the remaining issues, to the extent we can consider them, we affirm the trial court's rulings. The issues are evidentiary in nature, and we review them for abuse of discretion and prejudice. Ludwig has not shown either one. The order appointing Azar as Raymond's conservator is affirmed.
FACTS
As we are required to do under principles of appellate review, we recite the facts in the light most favorable to the trial court's order. (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.) We take many facts from the trial court's 13-page statement of decision, severely edited to include only those relevant to the issues on appeal. Unlike the unfortunate trial court, we do not have to wade through a 30-year "family epic," one that stretched a hearing that was supposed to take three days into a marathon eight days of testimony.
Ludwig rather unwisely characterizes the epic as a "'Cinderella type story,'" a conflict between a stepmother and a stepdaughter. Apparently Ludwig has forgotten that in the Cinderella story, the stepmother is the villain.
Raymond and Ludwig began having an affair while Raymond was still married to, and living with, his wife, Janet (Azar's mother). The affair was somewhat less than clandestine, as Ludwig made herself known both to Janet and to Azar, who was a high school student at the time.
After Janet's death from cancer in 1993, Raymond began living with Ludwig in the family home in Santa Ana, although he continued to date other women. In 2011, Raymond sold the Santa Ana property and moved, with Ludwig, to a condominium in Yorba Linda. He built a new house in Yorba Linda, into which he and Ludwig moved in 2014. Title to the new house was apportioned 80 percent to Raymond and 20 percent to Ludwig. Raymond made it plain to a neighbor that he and Ludwig were not married.
In May 2015, Ludwig announced she and Raymond were married. About this time, Raymond's children (Azar and her brother, Don) and his neighbors began to notice a decline in Raymond's cognitive functioning and behavior. A doctor diagnosed him as having several cognitive defects in June 2015. The doctor opined that these defects placed Raymond at risk for undue influence.
At the conservatorship hearing, Azar testified that her father told her in May 2015 he had made a terrible mistake in marrying Ludwig and that he had been tricked into it. Azar assisted Raymond in hiring an attorney to petition for an annulment, but on the day of the hearing Raymond arrived at the courthouse with a different attorney and stated that he did not want the marriage annulled. The petition was dismissed.
Whatever was Raymond's mental state in 2015, everyone agreed that his physical and cognitive status crashed after he took a serious fall at the very end of that year. He was hospitalized for five weeks beginning in January 2016, and everyone who visited him was shocked at the change in him. He could not speak, and he could not walk without assistance from both a walker and an aide. When Azar took him to the VA hospital to be fitted for hearing aids, he tried to eat them.
A neuropsychologist, Dr. Mosqueda, examined Raymond in the spring of 2017 and concluded he was seriously impaired. Raymond thought he was 56 years old (he was 82 at the time of the conservatorship hearing in the spring of 2018) and that he did not need any assistance, even though he could not get out of his wheelchair and could not stand alone. The court concluded that he needed a conservator because he could not care for himself.
The court issued an order for an Evidence Code section 730 evaluation in February 2017. The evaluation was to determine Raymond's "medical progression" and whether it was safe for him to live at home.
As mentioned above, Azar and Ludwig both petitioned the court to be appointed Raymond's conservator. The court chose Azar, holding that Ludwig was not as suitable as Azar or as likely to act in Raymond's best interests. As the court stated, Ludwig "has shown that she is unable to listen to healthcare providers and objectively assess what [Raymond] needs. She testified that she knows better than they do, and would act accordingly. Moreover, she is financially dependent on [Raymond's] income to maintain her standard of living, and that issue has colored her assessments in the past. Finally, she has not consistently provided care and support for Raymond. . . . For years, she has placed her needs and feelings over anyone else in this scenario, including Raymond's."
LeBloch's involvement came about after Raymond called him in December 2015 to set up an estate plan for himself and Ludwig. LeBloch appeared at a hearing on May 3, 2016, claiming to be Raymond's attorney. The minute order for that date provides, "Court recognizes Deputy Public Defender Jon Feldon as counsel for Proposed Conservatee Edward Raymond. [¶] All attorney client communication[s] are to go through Deputy Public Defender with the exception of the Guardian Ad Litem."
Oddly enough, the lawyer who accompanied Raymond to the hearing on the annulment petition claimed that he was Raymond's estate planning attorney.
In the opening brief, LeBloch quotes from a reporter's transcript of the May 3 hearing that was improperly included in the original appendix. (See Cal. Rules of Court, rule 8.124(b)(3)(B).) We disregard this quotation.
During the 2018 conservatorship hearing, LeBloch told the court he was a tax and business plan attorney who occasionally did estate planning. LeBloch prepared a will for Raymond, leaving his house and his property to Ludwig, which Raymond signed on December 12, 2015. LeBloch also undertook to prepare a more extensive estate plan for both Raymond and Ludwig, including a trust and a pourover will, which he was unable to accomplish due to Raymond's fall and hospitalization. The will Raymond signed in December 2015 was a stopgap measure because Raymond was planning to have a medical procedure. LeBloch opined that Raymond possessed testamentary capacity on the day he signed his will. Based on his retention to prepare Raymond's estate plan, LeBloch asserted that he still represented Raymond in the conservatorship proceedings.
DISCUSSION
LeBloch and Ludwig have identified four issues on appeal. The first is the court's refusal in May 2016 to recognize LeBloch as Raymond's attorney in the conservatorship proceedings. The other issues concern the evidence presented at the conservatorship hearing.
Before we discuss the issues on appeal, we must comment on the dismal state of the record. LeBloch filed an appellant's opening brief and appendix that, between them, managed to violate nearly every rule in the California Rules of Court regarding opening briefs and appendices. The statement of facts section is nearly devoid of citations to the record, as is the rest of the brief; often the sparsely given citations are wrong. (See Cal. Rules of Court, rule 8.204(a)(1)(C), (a)(2)(C); Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970 ["'Any statement in a brief concerning matters in the appellate record - whether factual or procedural and no matter where in the brief the reference to the record occurs - must be supported by a citation to the record.' [Citation.]"].) Representations were made about additional filings that never materialized, even though they were supposed to provide support for arguments in the brief.
The appellant's appendix also suffered from numerous rule violations. The original appendix included items - like deposition transcripts and copies of reporter's transcripts - the inclusion of which the rules prohibit. (See Cal. Rules of Court, rule 8.124(b)(3)(B), (g).) It omitted items - like the register of actions and the notice of election - that the rules require. (See Cal. Rules of Court, rules 8.124(b)(1)(A), (C); 8.122(b)(1)(F).) Even after we permitted the filing of a revised appendix, which we hoped would conform to the rules, the appellant was still trying to include documents that could not be properly shown to be part of the record.
We struck three purported trial exhibits from the revised appendix because appellant did not provide proper citations to the record showing that they were part of the superior court file or admitted into evidence (or refused admission) during the trial. (See Acqua Vista Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1159-1160.)
The California Rules of Court govern what can and cannot be included in the record on appeal. As a reviewing court, our job is to determine whether the trial court committed a legal error when it made the rulings pointed out to us by the appellant as erroneous. To do this, we must have before us materials that either were in the superior court file for the proceeding or form part of a properly designated reporter's transcript. Appellants may not just toss documents into the record as the fancy takes them.
One more principle of appellate review bears repeating here. If it is not in the record, it did not happen. (See Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 (Merced) ["When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two."]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) This principle alone disposes of one of appellant's issues.
The numerous and pervasive rule violations would support an outright dismissal of the appeal. (See Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [violation of rules of court may result in dismissal of appeal].) We are reluctant, however, to visit the inadequacies of counsel on the client. We therefore address each of the issues identified in appellants' opening brief.
Azar, the respondent, did not file a brief.
I. Appointment of Attorney LeBloch
Ludwig's main question on appeal is the choice of Raymond's conservator, not whether he needed one. That question is not affected by who represented Raymond.
With respect to his right to represent Raymond, LeBloch has no standing to contest the court's appointment of Raymond's attorney in the conservatorship proceedings through a direct appeal. He is not a party of record to the conservatorship proceedings, he is not a "party aggrieved" by the court's choice of a conservator (see Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67-68), and he has no authority to speak for Raymond. (See Sullivan v. Dunne (1926) 198 Cal. 183, 191.)
Ludwig likewise has no standing to assert Raymond's rights with respect to his counsel. To be fair, she does not appear to be doing so; only LeBloch, her lawyer in this appeal, is asserting his right to represent Raymond for his (LeBloch's) own benefit.
LeBloch's lack of standing is not the only obstacle. Because he now represents Ludwig, a petitioning conservator, it would also be an egregious conflict of interest to appoint him as Raymond's attorney. (See McClure v. Donovan (1947) 82 Cal.App.2d 664, 666 [attorney cannot represent conflicting claims of two clients].) This issue was dead on arrival.
II. Evidentiary Rulings
We review the trial court's evidentiary rulings for abuse of discretion. In addition to being erroneous, an evidentiary ruling must also be prejudicial to require reversal. (Evid. Code, § 353.) In other words, it must be reasonably probable that the outcome would have been more favorable to the appellant had the error not occurred. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-477.) Appellant has the burden of establishing prejudice. (Ibid.)
A. Hearsay Objections
During her testimony, Azar was asked whether she and her father had ever discussed the likelihood of marriage between him and Ludwig before May 2015. She replied that they had had about 10 discussions. She was then asked what Raymond had said on the subject. Ludwig's counsel (not LeBloch) objected on both hearsay and relevance grounds. The court overruled both objections, reasoning that testimony regarding Raymond's state of mind was both relevant and not hearsay.
Azar did not answer counsel's question about what Raymond had said during the 10 pre-May-2015 discussions about marrying Ludwig. She was asked another question entirely. Later in her testimony, Azar recounted one incident prior to May 2015 during which her father said he would never marry Ludwig. Ludwig's brief does not refer to this testimony.
Evidence Code section 1250 provides that a statement of a declarant's state of mind is not inadmissible hearsay if offered to prove the declarant's state of mind when that is an issue in the action. Evidence Code section 1251 provides that a statement of the declarant's state of mind at a time prior to the statement is not inadmissible hearsay if the declarant is unavailable and the statement is offered to prove a prior state of mind that is at issue in the action.
Ludwig's sole basis for objecting to the court's ruling on the "10 discussions" question is that the court failed to apply Evidence Code section 1252, which provides, "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." She cites the proof of a marriage and the fact that Azar had an interest in ending the marriage as indicating untrustworthiness.
Ludwig is confused about whose untrustworthiness the Evidence Code section refers to. It is the circumstances surrounding the statement by Raymond that must indicate untrustworthiness. (See People v. Spencer (1969) 71 Cal.2d 933, 946-947.) Ludwig's objection attacks Azar's trustworthiness, or rather her credibility. Ludwig is complaining, in essence, that Azar was biased when she gave her testimony and was an untrustworthy witness. But the question for purposes of Evidence Code section 1252 analysis is not Azar's trustworthiness, but Raymond's. The question is whether the circumstances surrounding Raymond's statement indicate his untrustworthiness - something to indicate he was speaking from a bias or was incompetent. Ludwig does not address this question.
Ludwig addresses the prejudice issue by claiming that the ruling on the "10 discussions" question paved the way for subsequent testimony from Azar regarding a conversation with her father immediately following the 2015 marriage to Ludwig. Azar testified he told her he had been tricked into marrying Ludwig (a "big mistake") and he could not remember the date of the wedding.
The record does not support Ludwig's argument regarding prejudice. The court handled each of the questions (the "10 discussions" question and the "tricked into marriage" question) individually. Ludwig's counsel separately objected to the testimony about Raymond's being tricked into marriage and was once again overruled. Ludwig does not attempt to explain why this ruling was erroneous and prejudicial. In short, Azar never answered the question Ludwig singled out as erroneously allowed in her brief; Ludwig cannot show any other connection, so there could have been no prejudice.
B. The Mosqueda Study
Ludwig's complaint on this issue is that Dr. Mosqueda, a neuropsychologist tasked to perform a court-ordered 730 evaluation of Raymond, fulfilled only half of her assignment. The court order of February 28, 2017, stated, "The scope of the 730 evaluation is whether Mr. Edward Raymond is safe to live at home with his wife and etiology of his fall and medical progression." Dr. Mosqueda did not determine whether it was safe for Raymond to live at home.
During the conservatorship hearing, after portions of Dr. Mosqueda's deposition were read into the record, Ludwig's counsel argued that the report she prepared should be excluded from evidence because (1) Dr. Mosqueda did not follow the court's directions and (2) she was biased in favor of Azar, as evidenced by the fact she let Azar stay in the room with Raymond during the evaluation.
The court found that Dr. Mosqueda was not biased, and even though she did not address the safety issue, the report was still valuable to the court because it addressed the adequacy of Raymond's current treatment to meet his needs. The report was admitted into evidence. In the statement of decision, the court noted that Dr. Mosqueda had responded to one of the court's two inquiries and further explained that whether a home was "safe" for a potential conservatee was not, in the doctor's opinion, within her area of expertise. As to Raymond's medical progression, Dr. Mosqueda reported severe cognitive impairment and delusional thinking.
Ludwig now argues that the doctor's opinion regarding Raymond's safety at home was "material." Although Ludwig does not make this point explicitly, she appears to contend that without this evidence, the court had no basis for selecting Azar to be Raymond's conservator. Or perhaps the point is that with this evidence, the court would have had to appoint Ludwig to be Raymond's conservator. It is hard to be certain because Ludwig fails to address the standard of review and does not cite any supporting legal authority. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)
This argument appears to challenge the court's decision for insufficient evidence. If an order is challenged on that basis, we review the record in the light most favorable to the trial court's findings. We resolve all evidentiary conflicts and draw all reasonable inferences in favor of the judgment. "The testimony of one witness may be sufficient to support the findings." (Conservatorship of B.C. (2016) 6 Cal.App.5th 1028, 1033-1034; see Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 57 [reviewing court "'ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing'"].) We sustain the trial court's factual findings if substantial evidence supports them, even in the face of contrary evidence. (Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 347.)
In this case, the court had plenty of evidence to support its choice of Azar over Ludwig as Raymond's conservator. The court alluded to this evidence in the statement of decision: Ludwig's refusal to listen to healthcare providers, her obvious financial motivation for seeking to care for Raymond at home, her disregard of others' needs and her self-absorption. Even if Raymond could have been safely cared for at home, Ludwig was not the person to be entrusted with this task.
By contrast, the court found that "the care Raymond received from the hospitals, the recovery facilities, and the board-and-care homes" after his fall and hospitalization in January 2016 - all of which Azar and her husband secured and financed - "was directed at [Raymond's] actual needs and was of an excellent quality." On this record, we may not interfere with the court's assessment of the evidence as to who would better serve Raymond's interests.
C. Catlapp Report
Ludwig's final objection is to the trial court's purportedly improper consideration of an investigative report authored by Constance Catlapp. There is no such report in the record. No reporter's transcript properly filed in this appeal records the trial court's consideration of the Catlapp report. Nothing in the appellant's opening brief directs us to any reference to the report in the record. As far as this court is concerned, the report does not exist, and the trial court never considered it. "[I]f it is not in the record, it did not happen . . . ." (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1.) There is no basis upon which we can review this issue.
DISPOSITION
The order of July 3, 2018, appointing Darlene Azar as conservator of the person and estate of Edward Raymond is affirmed. LeBloch appeal dismissed. Respondent is to recover her costs on appeal.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.