Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SPR81521.
MARGULIES, J.
Objector Richard Eyler appeals from an order confirming and approving the first account and report of Deborah Wagner, conservator of the estate of Florence Cream Eyler, Richard’s spouse. Richard contends the probate court erred in denying him an evidentiary hearing on his objections to the account. We find no error, and affirm the judgment.
To avoid confusion and meaning no disrespect, we will refer to the Eylers by their given names.
I. BACKGROUND
Richard filed a petition in April 2009, requesting the appointment of himself and his daughter-in-law as conservators of Florence’s person and estate. Counsel for the proposed conservatee was appointed by the court in May 2009. In June 2009, Florence’s three natural born children by a prior marriage (the Cream family) filed an objection to Richard’s appointment as conservator. At the hearing on July 15, 2009, the parties stipulated to the appointment of Wagner, a private professional fiduciary, as temporary conservator of Florence’s estate. Florence’s counsel thereafter petitioned for the appointment of Wagner as conservator of the person and estate for Florence. Wagner was appointed conservator of the estate in August 2009, but the issue of conservator of the person was deferred until October 2009, apparently due to Richard’s desire to be appointed sole conservator of the person and opposition to Wagner’s appointment. In October, the court appointed Wagner and Richard as coconservators of the person.
In December 2009, Wagner filed a petition for instructions requesting, among other things, the authority to place Florence in a residential care facility. In January 2010, Richard petitioned to remove Wagner as coconservator of the person and as conservator of the estate. The court denied the petition. Issues continued to exist among the family members and conservators with regard to proper care for Florence. The Cream family claimed Richard was a substandard care provider for Florence and her health was deteriorating as a result. Richard denied such assertions, and claimed he was doing all he could do despite interference from Wagner and the Cream family with his care of Florence. Florence’s court-appointed attorney expressed concerns about the care Richard was providing for Florence and recommended to the court that Florence be moved to a board and care facility unless Richard could convincingly attest to the court that he would abide by certain conditions pertaining to Florence’s care and living situation. Florence’s son, Joseph Cream, subsequently petitioned for an order requiring the coconservators of the person to place Florence in a residential care facility. Wagner supported the petition, and Richard opposed it.
In addition to disagreements over Florence’s care, the conservatorship was marked by an ongoing dispute over the amount of monthly income due to Florence from an irrevocable trust of which Joseph Cream was the trustee.
A. First Account and Report of Conservator
Pursuant to Probate Code sections 2620 and 2623, Wagner filed a “First Account and Report of Conservator and Petition for Its Settlement and for Allowance of Conservator’s Fees and Attorney’s Fees and for Periodic Compensation” on September 14, 2010. The verified petition contained the various elements enumerated by statute, including a property inventory, statement of income and disbursements, and description of services rendered and to be rendered by the conservator. It was supported by declarations executed by Wagner and her attorney authenticating and attaching time and billing records itemizing their services rendered, time spent, and hourly rates. Other than requests for an order for compensation of the conservator and the attorney for the conservator, the petition included no other requests for authorization, instruction, or confirmation. (See Prob. Code, § 1064, subd. (b).)
Probate Code section 2620, subdivision (a) provides for the conservator of the estate to “present the accounting of the assets of the estate of the... conservatee to the court for settlement and allowance” at the expiration of one year from the time of appointment. Section 2623 specifies the types of expenses of the conservator that the court must allow. Under Probate Code section 1064, subdivision (b), “[t]he filing of an account shall be deemed to include a petition requesting its approval, and may include additional petitions for authorization, instruction or confirmation authorized by the code, including, but not limited to, a request for an order for compensation of the fiduciary and the attorney for the fiduciary.”
B. Objections and Statements of Issues
Richard filed a verified objection to Wagner’s first account and report on October 27, 2010. He listed five objections: (1) the conservator failed to address notices of abatement relating to real property in which the conservatee held an interest; (2) the conservator paid out $5,722.08 in attorney fees without first petitioning the court for approval of the fees; (3) the conservator and her attorney were requesting over $54,000 in fees for their services but had not paid for the conservatee’s food and basic living expenses and failed to secure significant income to which the conservatee was entitled; (4) the conservator was requesting monthly compensation in excess of what the conservatee spends for food and basic expenses; and (5) the first account and report provided no information regarding the settlement of an alleged $1,600 debt for the purpose of a home inspection.
As required by the Superior Court of Sonoma County, Local Rules, rule 6.2, Richard’s counsel filed a statement of issues before the hearing. According to the local rule, the statement of issues is supposed to “identify the substantial issues in the controversy, with references to any supporting evidence and/or legal authority, ” and “[i]nclude each party’s opinion as to the appropriate method for resolving the controversy (i.e., mediation, arbitration, short cause trial, etc.).” (Super. Ct. of Sonoma County, Local Rules, rule 6.2(H)(3)(b), (e).) Counsel stated the issues before the court were as follows: “1. Has there been progress regarding visitation and care issues? [¶] 2. What is the status of [Florence’s] finances? [¶] 3. Were the parties able to reach a resolution of the outstanding issues at the mediation? [¶] 4. What is the status of the Accountings by the Trustee [of Florence’s irrevocable trust] and the Conservator?” The statement also asserted: “[Florence’s] finances continue to be hampered by a lack of liquidity and by the Conservator of the Estate’s attempts to benefit herself and her attorneys by securing payment for their services at the cost of providing current care to the conservatee. Ms. Wagner has further deliberately misstated the care needs of the Conservatee to further her own agenda in this matter.” Under the heading, “Requested Relief, ” counsel requested an evidentiary hearing as follows: “Petitioner requests a court hearing with witnesses on ALL contested matters currently before the court with respect to the Conservatee’s Trust and the Conservatorship. Petitioner intends to call several witnesses and anticipates the matter will take 1 full court day to hear.”
Richard’s objection and statement of issues were accompanied by a declaration from his counsel which contained various assertions concerning failed attempts to obtain a budget for Florence’s care from Wagner’s or Florence’s counsel, Wagner’s alleged failure to provide adequate funds to Richard for Florence’s daily needs, and Wagner’s position regarding Florence’s need to be moved to a care facility.
The Cream family submitted no objections to the account and report.
Wagner’s statement of issues summarized the issues before the court as (1) whether her account and report should be approved, (2) whether her acts and proceedings as reflected in the report should be approved and ratified, and (3) whether the court would authorize payments to her and her attorney as requested in the report. She stated that if a hearing was required, the matter would require approximately 20 minutes.
C. Hearing and Ruling on Conservator’s Account and Report
At the outset of the hearing on the conservator’s account and report, Richard’s counsel requested an evidentiary hearing as follows: “I had requested the hearing this morning, Your Honor, because I wish to have a hearing with testimony and witnesses. I believe my client is entitled to it. [¶] We have a fundamental difference of opinion with the conservator for the person. We do not believe her actions were in the best interest of the conservatee and we believe we’re entitled to a hearing on that matter.” Counsel explained she intended to review and question whether the conservator’s actions during the period of the accounting were warranted and in the conservatee’s best interest.
Counsel for the conservator and conservatee both opposed Richard’s request for an evidentiary hearing, arguing the only matter before the court was the accounting, which did not require such a hearing. They asserted the other issues Richard was raising pertained to Wagner’s performance as conservator of the person, had been addressed in earlier proceedings, and were not before the court. Counsel for the conservatee also pointed out that the issues on which Richard’s counsel was now proposing an evidentiary hearing were different from the five objections to the accounting he had filed on October 27, all of which were addressed in the court’s tentative ruling.
The court denied Richard’s request for an evidentiary hearing, and approved the conservator’s first account and report. This timely appeal followed.
II. DISCUSSION
Richard contends (1) his objections to the first account and report rendered the proceeding a contested matter entitling him to an evidentiary hearing, and (2) the denial of the hearing and reliance upon contested affidavits in approving the account and report was therefore reversible error.
Richard maintains Estate of Bennett (2008) 163 Cal.App.4th 1303 (Bennett) is dispositive of this matter. Bennett involved an appeal from a probate court order granting a motion to set aside an agreement the decedent’s heirs had made assigning their interests in his estate to two corporations. (Id. at p. 1305.) Based on affidavits alone, and despite the corporations’ request for an evidentiary hearing, the probate court set aside the agreement based on fraud and a mistake of fact. (Id. at pp. 1307–1308.) The parties submitted multiple, conflicting declarations as to the material facts, and each side filed evidentiary objections to the opposing party’s declarations. (Id. at p. 1308.) In opposing the motion, the corporations’ counsel argued, “petitioners’ motion ‘bespeaks nothing but factual issues which require... [a] full evidentiary hearing....’ ” (Id. at p. 1307.) At oral argument, he again pointed out, “ ‘[a]ll you have [are] declarations where everybody contradicts each other.’ ” (Id. at p. 1308.) The trial court nonetheless granted the motion without requiring an evidentiary hearing. (Ibid.)
The Court of Appeal reversed, finding an evidentiary hearing was required. (Bennett, supra, 163 Cal.App.4th at p. 1310.) The court first noted Probate Code sections 1000 and 1022 were both relevant to the use of affidavits in probate proceedings. (Bennett, at p. 1309.) Notwithstanding Code of Civil Procedure section 2009, which generally permits the use of affidavits in civil proceedings, it construed these Probate Code sections to mean that affidavits may not be used as a substitute for oral testimony in contested probate proceedings. (Bennett, at p. 1309.) The court’s analysis was set forth as follows: “It is true the restriction on the use of declarations in contested probate hearings is inapplicable when ‘the parties d[o] not object to the use of affidavits in evidence and both parties adopt[] that means of supporting their positions.’ (Estate of Fraysher [(1956)] 47 Cal.2d [131, ] 135; see Evangelho v. Presoto [(1998)] 67 Cal.App.4th [615, ] 620.) But here, [the corporations], while opposing the motion on the merits, also asserted in written opposition and at the hearing that the factual conflicts presented by the parties’ competing declarations mandated an evidentiary hearing. Consequently, the issue was preserved for review in this case.” (Id. at p. 1309.)
Probate Code section 1000 states in relevant part: “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions... constitute the rules of practice... in proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.”
Probate Code section 1022 states: “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.”
Estate of Lensch (2009) 177 Cal.App.4th 667 (Lensch) is also instructive. Lensch involved a petition to determine whether there was sufficient evidence the decedent’s son had survived her and could therefore take under her will. (Id. at p. 671.) The petition relied on statements made by the coroner who investigated the son’s death that he could not determine the precise time of death. (Id. at pp. 671–672.) The son’s executor opposed the petition, relying on the times of death shown on the death certificates of the decedent and her son, and arguing the petition was based on “ ‘inadmissible opinions, speculation, and hearsay.’ ” (Id. at p. 672.) The probate court, erroneously believing survivorship was not material under the decedent’s will, denied the petition to determine survival without an evidentiary hearing. (Id. at pp. 672–673.) Relying on the death certificates, the court also ruled in the alternative that the son did in fact survive the decedent. (Ibid.)
The Court of Appeal found first that the question of survivorship was material under the antilapse statute even if the will itself contained no survivorship requirement. (Lensch, supra, 177 Cal.App.4th at p. 673.) On the issue of whether an evidentiary hearing was required to determine that issue, the court observed that in his opposition the respondent objected specifically to the appellants’ petition on the ground it relied on inadmissible evidence, and he submitted evidence conflicting with that of the appellants. (Id. at p. 677.) Citing these factors, the court found an evidentiary hearing was required. (Ibid.)
In our view, Bennett and Lensch do not stand for the proposition that merely filing an objection to a probate petition accompanied by a request for an evidentiary hearing is sufficient to require such a hearing in all cases. Based on the facts and analysis of the two cases, and the earlier case law on which they rely, at least one of two further requirements must be met. First, one or both parties must challenge the admissibility of the opposing party’s verified petition and/or declarations. Second, there must be some showing there are factual issues in dispute material to the determination of the petition which could turn on the credibility of witnesses. In Bennett and Lensch, both conditions were satisfied. Evidentiary objections were made to the opposing party’s submissions in both cases, and there were obvious factual conflicts in the parties’ submissions that were material to the issue before the court.
We have no such record here. Richard filed objections to the account and report, and he requested an evidentiary hearing, but we find nothing to indicate he ever (1) challenged the admissibility of the conservator’s verified petition or the supporting declarations filed along with it, or (2) identified any factual conflicts in the parties’ submissions material to resolving his objections. In fact, there was a substantial disconnect between the five objections he filed to the conservator’s account and his counsel’s description of the issues she wished to explore in an evidentiary hearing. Richard’s written objections complained of notices of abatement, certain attorney fee payments, the conservator’s alleged stinginess in funding the conservatee’s living expenses while requesting substantial fees for her services, and the omission of an alleged $1,600 debt for a home inspection. In her statement of issues, counsel requested an evidentiary hearing on “ALL contested matters currently before the court with respect to the Conservatee’s Trust and the Conservatorship.” At the hearing, counsel sought a hearing covering all of the conservator’s actions during the period of the accounting, and whether such actions were warranted and in the conservatee’s best interests. At no time in his written submissions or at oral argument before the trial court did Richard or his counsel specify material factual conflicts raised by the verified petition and declarations supporting and opposing it, or additional evidence he sought to adduce, that required an evidentiary hearing. No such evidentiary conflicts were evident from the documents themselves.
The statutory and case law Richard relies upon did not afford him an automatic right to an evidentiary hearing on the conservator’s first account and report merely because he disagreed with her actions as coconservator of his wife’s person. Absent a colorable objection to the admissibility of evidence supporting the petition, Richard was required to show the existence of one or more material factual disputes. Since he failed to do that, the trial court properly denied his request for an evidentiary hearing.
III. DISPOSITION
The order appealed from is affirmed.
We concur: Marchiano, P.J., Banke, J.