Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court for the County of Los Angeles. Thomas C. Falls, Judge., Los Angeles County Super. Ct. No. KP010156, consolidated with KP008719.
Stephen E. Bradstreet, in pro. per., for Appellant.
Mariellen Ross, in pro. per., for Respondent.
BOLAND, J.
SUMMARY
The trial court denied a son’s petition for the appointment of a conservator for his mother, concluding Maine was the appropriate jurisdiction for the determination of conservatorship matters. Another son, who had objected to the conservatorship petition, appealed from the court’s order awarding attorney fees to court-appointed counsel for the mother, contending the court had no jurisdiction over the conservatorship petition and therefore no jurisdiction to award fees. We affirm the order awarding fees to court-appointed counsel.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2004, Charles S. Bradstreet (Charles S. or husband) filed a petition for appointment of a probate conservator of the person and estate of Winifred M. Bradstreet, his wife of over 50 years. The petition requested findings and orders that Winifred was legally incapacitated from filing for divorce and signing documents such as the grant of a power of attorney and contracts for purchase and sale. The petition asserted that Winifred had been incapacitated since June 2002, when she was residing with her husband. Winifred then went to visit her eldest son, Stephen Bradstreet, in Maine in 2002, and had been “kept from visiting the family independently since that date . . . .” Other allegations included that Winifred did not have the capacity to make a change of residence; Stephen had taken control of Winifred, who had signed a power of attorney giving him authority over assets; Stephen attempted unsuccessfully to file for divorce in Maine on behalf of Winifred; and a petition for dissolution had been filed in Los Angeles, which Winifred’s husband believed was a continuance of Stephen’s efforts to obtain assets from his parents’ trust, which included most of Winifred’s assets.
Winifred’s husband and son Charles E. also filed a petition for the appointment of a conservator in October 2002. On March 7, 2003, the court granted Winifred’s motion to quash service of the petition, finding it lacked jurisdiction. When the husband filed the petition that generated this appeal (which apparently occurred after Winifred filed a petition for dissolution in California), the matter was consolidated with the proceeding initiated in October 2002.
On December 2, 2004, Mariellen Ross was appointed as Probate Volunteer Panel (PVP) attorney for Winifred, under the authority of Probate Code section 1470. Section 1470 permits the appointment of private legal counsel for a proposed conservatee if the person is not otherwise represented by legal counsel and the appointment would be helpful to resolve the matter. (Prob. Code, § 1470, subd. (a).) Later that month, Winifred’s husband died. On February 3, 2005, Winifred’s second son, Charles E., filed an amended petition to appoint a conservator of his mother’s person and estate. The petition made allegations similar to those in the husband’s petition. It also alleged that before Winifred went to Maine in 2002, she had been diagnosed with dementia, and her mental condition had deteriorated further since that time.
“The court may appoint private legal counsel for . . . a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.” (Prob. Code, § 1470, subd. (a).)
On March 10, 2005, a hearing was held. Present were petitioner Charles E. and his attorney; objector Bette Brown (Winifred’s daughter); James Morris, an attorney appearing for Winifred; and a representative of the court-appointed PVP attorney for Winifred. The PVP representative questioned whether the proposed conservatee had capacity to hire independent counsel. The court was advised that Winifred was living in Maine, where another conservatorship proceeding was pending. Winifred’s daughter asserted her brother Charles E. “has tried to abduct my mother” and had “absconded with, for the last few months, all of the rent money” from properties in Winifred’s trust; her brother Stephen had provided for Winifred for the last several years; and Winifred was, as the trial court summarized it, “basically competent” and could “do what she needs to do.” The court observed that “all I’m getting now are the siblings, all the children saying this is what’s going on,” and that it would like to hear from Winifred, through PVP counsel “who is independent from all these gentlemen and all these people” and “who I appointed to represent [Winifred] so I can get feedback as to what’s going on.” Winifred’s counsel said that “[w]e will do the best we can to have her speak by telephone with Ms. Ross [PVP counsel],” and “[i]n fact, it might be helpful if we could put Ms. Ross in touch with her court-appointed counsel in Maine.” The matter was then continued, the court observing “I want to know what’s going on in Maine.”
The court also observed, when Winifred’s daughter indicated Winifred had representation and did not need PVP counsel, that “[i]f she [PVP counsel] doesn’t talk to your mother, I will take that into consideration in considering whether or not she’s [Winifred’s] being hidden and held.”
On April 26, 2005, Winifred’s counsel (Morris) filed a certified copy of temporary letters of conservatorship issued to Stephen and Bette by the Maine probate court, along with the report of Winifred’s court-appointed guardian ad litem in Maine. Counsel also filed declarations from a psychologist, a speech-language pathologist and two caregivers, attesting to Winifred’s general competency and describing her language impairment problems resulting from a stroke.
On May 10, 2005, PVP counsel Ross filed her third report and a supplemental request for fees. Ross’s report described an extensive telephone conversation with Winifred’s guardian ad litem in Maine and concluded it would be appropriate that she be relieved as Winifred’s counsel. She sought total fees of $4,600.00 and requested discharge as counsel.
Ross filed her initial petition for fees on April 5, 2005, requesting fees of $3,800.
The report of her conversation with the Maine guardian ad litem, Richard Cleary, indicated that at the time of Cleary’s March 26, 2005 report, his opinion was that Winifred lacked the capacity to retain counsel, but that he had no opinion “as to her level of capacity even two weeks prior to that time.”
On May 12, 2005, Stephen, as Winifred’s attorney-in-fact, moved “to dismiss Request for Attorney fees for lack of jurisdiction and non-conformance to code,” and moved to dismiss the conservatorship petition “for lack of personal and/or subject matter jurisdiction.” The motions were scheduled for hearing on July 14, 2005.
Also on May 12, 2005, the court held a previously scheduled hearing on Charles E.’s conservatorship petition. All three children attended, as did counsel for Charles E., counsel for Winifred, and PVP counsel Ross. After hearing from everyone present, the court observed that Maine had accepted and exerted jurisdiction by issuing temporary conservatorship orders, and concluded: “I’m going to let Maine take it. I’m going to deny the request and dismiss the proceedings for lack of jurisdiction. And if I’m wrong, I’m sure an appellate court will tell me so. I don’t believe I have jurisdiction to hear anything further in the matter. [¶] Mr. - - all the Bradstreets can fight this out in Maine.” The court also ordered payment of attorney fees to PVP counsel, and counsel for Winifred stated he had no objection to payment to PVP counsel. The court then discharged PVP counsel. The court later issued the following written orders implementing the rulings:
· A June 24, 2005 written order approving $4,600 in attorney fees.
· A July 29, 2005 written order denying Charles E.’s petition for appointment of a conservator due to lack of jurisdiction; denying Stephen’s motions to dismiss filed on May 12; and discharging Ross as PVP counsel for Winifred.
Stephen moved “to reconsider and/or vacate” the July 29, 2005 order, arguing it was void in part and the request for attorney fees should have been dismissed for lack of jurisdiction in the underlying matter. The motion was denied on November 23, 2005, and Stephen filed a notice of appeal on December 21, 2005.
DISCUSSION
Stephen contends that because the trial court “did not have jurisdiction to hear the conservatorship petition,” it lacked jurisdiction to grant the court-appointed attorney’s request for fees, rendering the fee order void. Stephen is mistaken.
Lack of jurisdiction fundamentally “ ‘means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ ” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, citation omitted.) When a court lacks jurisdiction in this fundamental sense, an ensuing judgment is void. (Ibid.) This is not such a case. The court had full authority over the subject matter of this case: a petition was filed by California residents requesting the appointment of a conservator for their wife and mother. The court’s eventual conclusion – after reviewing the contradictory claims of the siblings and the reports of the attorney appointed by the court to provide a neutral view of the matter – was that Maine was the appropriate jurisdiction to decide matters relating to the proposed conservatorship. The court’s statement that it did not “have jurisdiction to hear anything further in the matter” does not mean it lacked fundamental jurisdiction to hear the conservatorship petition and to make appropriate orders in connection with it. That is exactly what the court did.
The cases Stephen cites – Branson v. Nott (9th Cir. 1995) 62 F.3d 287, 292-293 and Cliburn v. Police Jury Ass’n of Louisiana, Inc. (5th Cir. 1999) 165 F.3d 315, 316 – stand for the proposition that a trial court without subject matter jurisdiction over a matter may not award attorney fees to the prevailing defendant. These cases are inapposite because the trial court in this case had subject matter jurisdiction over the conservatorship petition.
Stephen also argues the trial court lacked jurisdiction to appoint counsel for Winifred because Winifred “was represented by counsel of her own choosing at all proceedings of the conservatorship matter . . .,” and the Probate Code specifies counsel may be appointed “if the court determines the person is not otherwise represented by legal counsel . . . .” (Prob. Code, § 1470, subd. (a).) However, PVP counsel was appointed shortly after the petition was filed and before any hearings at which other counsel for Winifred appeared. More importantly, an issue clearly existed as to whether Winifred had the capacity to retain counsel in the first place. Consequently, the court had the authority to appoint counsel, and did not err in doing so. Indeed, it is difficult to avoid the conclusion the court would have been remiss in failing to do so. In short, the court had jurisdiction to appoint counsel and, having done so, was required to fix a reasonable sum for counsel’s compensation and expenses. (Prob. Code, § 1470, subd. (b).)
Stephen states in his reply brief that Winifred “was represented by counsel Carlos Cabrera at the initial hearing Dec. 1, 2004 . . . .” There is no evidence in the appellate record or in the superior court’s case summary showing Cabrera’s presence. However, even if we assume, as Stephen tells us, that Cabrera (who was apparently Winifred’s counsel in her dissolution action) was present at the December 1 hearing, there is no evidence or suggestion that he entered an appearance in the proceeding on Winifred’s behalf.
Stephen makes several other arguments, including that the amended petition for conservatorship was procedurally defective and therefore void, because it was not signed by the original petitioner (Winifred’s husband, who was then deceased); the parties were not served with the order appointing counsel under Code of Civil Procedure section 664.5 (notice of entry of judgment); and the June 24, 2005 and July 29, 2005 orders were not properly served under Code of Civil Procedure section 664.5. Assuming any procedural deficiencies occurred, Stephen has not been prejudiced by them; they do not render the orders he has appealed void; and his arguments are otherwise without merit.
DISPOSITION
The orders are affirmed. Mariellen Ross is to recover her costs on appeal.
We concur: COOPER, P. J., RUBIN, J.