Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. PR064204
Jones, P.J.
Alicia Antone appeals contending the trial court exceeded its authority when it decided a petition for substituted judgment. (Prob. Code, § 2580 et seq.) We conclude the court acted well within the scope of its authority and will affirm.
Unless otherwise indicated, all further section references will be to the Probate Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant has only provided us with a partial record of the proceedings below. As best as we can tell, the background of this case is as follows.
Ruth A. Copley formerly lived in Marin County. She has two adult children; a son and a daughter. Copley was estranged from her children and in 2001, her long-time attorney prepared a revocable trust that left her entire estate to the San Francisco Opera and the San Francisco Ballet.
Appellant Alicia Antone is a caregiver who works for the Marin Nurses Network. Antone provided care to Copley and the two became friendly.
On July 13, 2006, Antone took Copley to Ian Sammis, an attorney, and with Sammis’s help executed an amendment to her trust. As amended, half of Copley’s estate would pass to Antone, and the other half would be divided equally by Copley’s children. The following day, July 14, Antone took Copley to another attorney, Gary Leiberman, in order to obtain a “Certificate of Independent Review.”
The Probate Code contains several sections that are intended to ensure that donative documents reflect the true intent of the donor. Three of those sections are relevant here.
Sometime thereafter, a doctor who evaluated Copley referred her situation to the Marin County Public Guardian (Public Guardian). Copley’s failing heath resulted in a reconciliation with her children. In September 2006, Copley moved into her son’s home in Oregon.
On December 12, 2006, the Marin County Public Guardian was appointed conservator of Copley’s person and estate. Thereafter, the Public Guardian and Copley’s son began to work on a care plan for Copley.
In August 2007, the Public Guardian filed a petition for substituted judgment. As amended and as is relevant here, the petition sought to amended Copley’s trust so that upon her death, 10 percent of her estate would pass to the San Francisco Ballet Endowment Fund, 10 percent would pass to the San Francisco Opera Endowment Fund, and the remaining 80 percent would be divided equally by Copley’s children.
In September 2007, Anton filed an objection to the petition.
The case was tried to the court over a six-day period in December 2007. On December 20, 2007, the court issued the following statement of decision:
Appellant has not provided a complete record of the trial. We have no substantive testimony, and have only been given the arguments of counsel.
“1. Ruth Copley does not now have testamentary capacity.
“2. Ruth Copley did not have testamentary capacity on July 13, 2006 and the Trust Amendment of that date is void.
“3. In any event, Alicia Antone is a ‘Disqualified Person as defined in [Probate] Code § 21350.5’ and Mr. Lieberman’s deposition testimony makes it clear that his certificate was founded upon insufficient knowledge of Ruth Copley’s condition and circumstances.
“4. Alicia Antone... occupied [a] confidential [relationship] with Ruth Copley; actively participated in procuring [the] Trust Amendment; and unduly profited thereby, giving rise to a presumption of undue influence which was not rebutted but rather reinforced by Ms. Antone’s... own testimony and Ms. Antone’s sworn declarations.
“5. The 2001 Trust Agreement is the last competent expression of Ruth Copley’s testamentary intentions. The Bank of Marin will succeed to the position of trustee pending further order of the court.
“6. The trustee has the discretion per the trust terms, to provide for Ruth Copley’s care, maintenance and support from the trust income and/or principal.
“7. The court will reserve a ruling on the Conservatorship Petition to sell Ruth Copley’s Marin County residence, pending further briefing and argument of the issue.”
The statement of decision caused some confusion because the court did not expressly state how it had ruled on the petition for substituted judgment. The parties conducted a hearing on that question where the trial judge said he thought the “implication” from the statement of decision was “fairly clear” that there was “no reason to amend the trust.” However, to make things clear, the judge said he would “simply... do what I think everybody thought I did in the first place and that is deny the petition for substituted judgment.”
On March 17, 2008, the court then filed a formal order denying the petition for substituted judgment.
II. DISCUSSION
This court recently provided a comprehensive explanation of the history and purpose of the substituted judgment statutes in Murphy v. Murphy (2008) 164 Cal.App.4th 376. We set forth an abbreviated version here.
The substituted judgment statutes are set forth in section 2580 et seq. Their purpose is to codify the common law doctrine of substituted judgment which provides that a trial court may authorize the transfer of estate property that a conservatee would have transferred had he or she been competent to act. (Murphy v. Murphy, supra, 164 Cal.App.4th at p. 394.)
Section 2582 states that the court may make an order for substituted judgment only if it determines that the conservatee either is not opposed to the order or, if opposed, lacks legal capacity for the proposed action.
Section 2583 provides that in deciding a motion for substituted judgment, the court must consider “all the relevant circumstances,” which may include, but are not limited to the 13 circumstances enumerated in the section.
The 13 enumerated circumstances set forth in section 2583 are:
Section 2584 states: “After hearing, the court, in its discretion, may approve, modify and approve, or disapprove the proposed action and may authorize or direct the conservator to transfer or dispose of assets or take other action as provided in the court’s order.”
Here, Antone does not dispute that the trial court correctly denied the Public Guardian’s petition for substituted judgment. However, Antone does challenge the factual findings set forth in numbers 2 through 5 of the statement of decision. Specifically, Antone contends those findings exceeded the court’s authority and were unauthorized. We disagree.
At the substituted judgment hearing, the court was asked to determine whether the trust amendments the Public Guardian had proposed were appropriate. One of the factors the court had to evaluate when making that determination was whether Copley “as a reasonably prudent person would take the proposed action if [she] had the capacity to do so.” (§ 2583, subd. (k).) The court had to assess whether Copley, as a reasonably prudent person, would take action that was inconsistent with her prior testamentary wishes. However, Copley’s prior testamentary wishes were not clear. On July 13, 2006, Copley had executed a trust amendment that differed significantly from her June 1, 2001 expression of testamentary intent, and may or may not have reflected her true testamentary wishes. The court was required to determine whether the July 13, 2006 amendment was a true expression of Copley’s intent. The findings set forth in numbers 2 through 5 of the statement of decision reflect the court’s findings on that issue. Specifically, the court ruled that the July 13, 2006 amendment was not valid because (1) Copley was not competent, (2) Antone was a “disqualified person” defined by section 21350.5 and the certificate of independent review that was executed by the Lieberman was ineffective, and (3) the amendment was obtained through undue influence. Accordingly, the court ruled that 2001 trust was the last competent expression of Copley’s testamentary intentions. Those findings were well within the scope of the issues being tried and were in fact critical to the court’s ruling.
The result we reach is completely consistent with prior case law. Indeed, we faced a very similar issue in Murphy, supra, 164 Cal.App.4th 376 . The primary issue in Murphy was whether a ruling in a prior substituted judgment proceeding had collateral estoppel effect in a later civil action. In order to make that determination, this court had to determine what issues had or could have been decided in the substituted judgment hearing. The relevant portion of our discussion is as follows: “Among the issues necessarily resolved in a substituted judgment proceeding is whether ‘the proposed action is what a reasonably prudent person in the conservatee’s position would have done.’ [Citation.] Evidence of a prior conflicting testamentary agreement would have been relevant to a resolution of that issue. That is, a court persuaded of the existence of such an agreement would be unlikely to authorize execution of an inconsistent testamentary instrument. Because the existence of such an agreement was a matter within the scope of the substituted judgment proceeding, the substituted judgment order precludes consideration of the testamentary agreement in the instant action.” (Id. at p. 402.)
As we have stated, the court here was required to determine whether the trust amendments proposed by the Public Guardian were something that a reasonably prudent person in Copley’s position would have done. In order to make that determination, the court first had to determination what Copley had done previously. As in Murphy, the court’s findings on the validity of the July 2006 trust amendment were “within the scope of the substituted judgment proceeding....” (Murphy, supra, 164 Cal.App.4th at p. 402 .)
None of the arguments Antone makes convince us the trial court erred. First, Antone argues that the findings she challenges were beyond the scope of what was sought in the petition. As we have explained, that is simply not true. The petition asked the court to exercise substituted judgment and the findings in question were a necessary step when making that determination. A passage from the reporter’s transcript illustrates that Antone’s trial counsel understood that point. At a discovery hearing before trial, Antone’s counsel asked the Public Guardian to stipulate that the 2006 estate plan was valid and not the result of undue influence. The court said there was no need for the Public Guardian to enter into such a stipulation because “that isn’t one of the issues that’s been framed.” Antone’s counsel disagreed telling the court, “It’s one of the factors among the list of factors that this Court looks at in entering a substituted judgment proceeding.” As trial counsel stated correctly, the validity of the prior trust amendment was “one of the factors” the court had to evaluate when determining the petition.
Next, Antone argues that the court in effect entered a ruling on a premortem will or trust contest. According to Antone, that ruling violated her due process rights because a will or trust contest had not been pleaded. The court did rule that the July 13, 2006 trust amendment was “void.” However, in doing so, the court simply made a ruling on an issue that was within the scope of the substituted judgment petition that had been pleaded. The possible res judicata consequences of that ruling are not before us and we state no opinion on that issue. We conclude appellant’s due process rights to notice and an opportunity to be heard were not violated.
Next, Antone argues the court’s formal order denying the petition rendered the prior statement of decision “moot.” While the statement of decision did cause some confusion because the trial court did not state expressly how it was ruling on the petition for substituted judgment, the court later clarified its intent. At a subsequent hearing, the trial judge said his intent was to deny the petition and that he was “not modifying any of the orders that previously were made[.]” The court then filed a formal order denying the petition. On this record, it is clear the court intended the statement of decision to illustrate and explain its subsequent order. There is no reason to conclude the statement of decision was rendered moot.
Finally, appellant argues that under the unique facts of this case, the court’s order and statement of decision should not be given collateral estoppel effect. We need not reach that issue. The concept of collateral estoppel precludes a party in a second proceeding from relitigating issued that were litigated and decided in a prior proceeding, (Murphy, supra, 164 Cal.App.4th at p. 398) and here there is no second proceeding. We decline to issue an advisory opinion on issues that have not and may not ever arise. (Denny’s, Inc. v. City of Agoura Hills (1997) 56 Cal.App.4th 1312, 1329, fn. 10.)
III. DISPOSITION
The order is affirmed.
We concur: Needham, J., Bruiniers, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 21350 states: “(a) Except as provided in Section 21351, no provision... of any instrument shall be valid to make any donative transfer to any of the following: [¶]... [¶] (6) A care custodian of a dependent adult who is the transferor.”
Section 21350.5 states: “For purposes of this part, ‘disqualified person’ means a person specified in subdivision (a) of Section 21350, but only in cases where Section 21351 does not apply.”
Section 21351 states: “Section 21350 does not apply if any of the following conditions are met: [¶]... [¶] (b) The instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate [of independent review].... ”
“(a) Whether the conservatee has legal capacity for the proposed transaction and, if not, the probability of the conservatee’s recovery of legal capacity.
“(b) The past donative declarations, practices, and conduct of the conservatee.
“(c) The traits of the conservatee.
“(d) The relationship and intimacy of the prospective donees with the conservatee, their standards of living, and the extent to which they would be natural objects of the conservatee’s bounty by any objective test based on such relationship, intimacy, and standards of living.
“(e) The wishes of the conservatee.
“(f) Any known estate plan of the conservatee (including, but not limited to, the conservatee’s will, any trust of which the conservatee is the settlor or beneficiary, any power of appointment created by or exercisable by the conservatee, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the conservatee’s death to another or others which the conservatee may have originated).
“(g) The manner in which the estate would devolve upon the conservatee’s death, giving consideration to the age and the mental and physical condition of the conservatee, the prospective devisees or heirs of the conservatee, and the prospective donees.
“(h) The value, liquidity, and productiveness of the estate.
“(i) The minimization of current or prospective income, estate, inheritance, or other taxes or expenses of administration.
“(j) Changes of tax laws and other laws which would likely have motivated the conservatee to alter the conservatee’s estate plan.
“(k) The likelihood from all the circumstances that the conservatee as a reasonably prudent person would take the proposed action if the conservatee had the capacity to do so.
“(l) Whether any beneficiary is a person described in paragraph (1) of subdivision (b) of Section 21350.
“(m) Whether a beneficiary has committed physical abuse, neglect, false imprisonment, or fiduciary abuse against the conservatee after the conservatee was substantially unable to manage his or her financial resources, or resist fraud or undue influence, and the conservatee’s disability persisted throughout the time of the hearing on the proposed substituted judgment.”