Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. 24618. Ronald W. Hansen, Judge.
Cyril Lawrence, Inc., Cyril L. Lawrence, Sean P. McLeod; Law Office of Melbourne N. Gwin and Melbourne N. Gwin, Jr. for Defendant and Appellant.
Lampe & Fromson and Christopher W. Lampe for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Kathleen A. Silveira (Kathleen), by and through her conservator, Nancy Powell, moved to set aside an order approving the transfer or transmutation of Kathleen’s community property to the separate property of her husband, respondent Rollin F. Silveira (Rollin). The order was obtained by Rollin in a special probate proceeding as a means of qualifying Kathleen, who suffers from multiple sclerosis and requires full-time care in a nursing facility, for Medical assistance. Eight months later, however, Rollin filed for divorce. A conservator was duly appointed on Kathleen’s behalf, and a motion to set aside the trial court’s order was made on the grounds of extrinsic fraud and/or breach of fiduciary duties. The trial court denied the motion to set aside its prior order and this appeal followed. We will affirm.
FACTS AND PROCEDURAL BACKGROUND
Rollin and Kathleen were married on April 30, 1995. Within approximately one year, Kathleen was diagnosed with multiple sclerosis. The disease progressed to the point that Kathleen became physically debilitated and mentally impaired. On October 1, 2003, Rollin came home from work and found his wife on the ground, unable to get up. She was admitted to Mercy Hospital and was subsequently taken to Hylond Convalescent Hospital, at which time Rollin and Kathleen were told that she would need full-time nursing home care.
According to Rollin, he and Kathleen were living together as husband and wife at their home in Merced until the day she was hospitalized (i.e., October 1, 2003), and thereafter Rollin would visit his wife at Mercy Hospital and Hylond Convalescent Hospital on a daily basis. Aside from the fact that she was hospitalized due to her medical condition, Rollin did not consider himself to be “separated” from his wife and he was not contemplating divorce.
Rollin was informed that the monthly cost of Kathleen’s care at the Hylond Convalescent Hospital would be $4,700 per month. In his declaration filed in opposition to the motion to set aside, he states: “This was substantially more than my monthly take home pay and although my wife and I had some assets, those assets would quickly be dissipated by this sort of horrendous monthly expense for her health care needs.” A Medical case worker advised him to contact an attorney with expertise in elder law, and Rollin consulted attorney Keith King. Attorney King advised Rollin to petition the court under Probate Code section 3100 to transfer the community property assets to him. As Rollin understood it, “This would enable my wife to receive Medical and avoid the necessity of ultimately giving everything we had to either Hylond Convalescent Hospital or the government.”
Unless otherwise indicated, all further statutory references are to the Probate Code.
According to Attorney King, as presented in his declaration:
“… I advised [Rollin], as I have many other persons in similar situations, that the most appropriate and prudent course of action would be to file a petition with the probate court pursuant to Probate Code § 3100 … asking the court to authorize the transfer of essentially all the assets in which [Kathleen] had an interest to her husband Rollin []. This type of Medical planning is generally the best solution to enable the institutionalized spouse to qualify for Medical for several reasons, including (1) it gives the community spouse full control of the assets to enable the full use and preservation of assets, (2) Medical rules require the transfer to enable the institutionalized spouse to qualify for Medical, and (3) under Medical rules, transfers between spouses do not prejudice the right of the institutionalized spouse to seek Medical qualification whereas transfers to others would create a penalty period of disqualification equal to the value of the countable assets transferred.”
On October 29, 2003, a verified probate petition was filed by Rollin (through Attorney King) asking the court to transfer to Rollin, as his sole and separate property, the community property assets of his marriage to Kathleen. The petition asserted that Kathleen was 52 years old, a resident at Hylond Convalescent Hospital, and “lack[ed] legal capacity for the proposed transaction … because of progressive multiple-sclerosis which [had] rendered her mentally incompetent.” It acknowledged that Kathleen did not have a conservator. A note from Kathleen’s medical doctor was attached to the petition, stating that Kathleen was “mentally incompetent secondary to progressive multiple sclerosis,” and the same doctor filed a declaration asserting that Kathleen “[was] not able to attend the court hearing … and will continue to be unable to attend court hearings for the foreseeable future” (capitalization omitted). Regarding the relief sought, the petition noted that “Probate Code [section] 3102 specifically provides for the consummation of this type of transaction between spouses,” and that “Probate Code [section] 3113 provides that this proceeding may be brought without the necessity of appointing a Conservator for the other spouse.”
According to Rollin’s verified petition, the court’s approval of the transaction was sought “for the advantage, benefit or best interests of the spouses and their estate, and for the care and support of the spouses,” for the following reasons: “(a) Welfare and Institutions Code [section] 14006.2 deems such a transfer to be adequate consideration for Medical purposes, since a home occupied by a spouse is an exempt asset, and may be transferred without consideration for Medical eligibility. [¶] (b) Under Medical Rules, transfers between spouses do not prejudice the right of the institutionalized spouse to seek Medical Qualification. [¶] … [¶] (e) [Rollin] may wish to sell this property and reinvest the proceeds in housing which is more appropriate for his needs, or to generate cash flow for his own or his spouse’s care. [¶] (f) [Rollin’s] spouse is presently receiving Medi-Care benefits adequate to pay for her nursing home care. However, after the termination of a period of 100 days, it is anticipated that [Rollin] will apply to Medical on behalf of his spouse in order to receive Medical benefits adequate to pay for his spouse’s nursing home care. [¶] (g) If [Rollin] is institutionalized, he may find it advisable to obtain other housing more convenient for him, and will need to transfer the family home. [¶] (h) [Rollin’s] spouse is unable to knowingly execute Deeds, and is not expected to regain the ability to do so.”
A list of community property assets was provided in exhibit C to the petition. The community assets included a home on Notre Dame Avenue in Merced (valued at $125,000), furnishings and various bank accounts. The total estimated value of community property was listed as $144,424.99. An itemization of Rollin’s separate property was attached as exhibit D to the petition. The list of separate property included several retirement funds, a 1932 Ford Coupe and a 2003 GMC pickup truck. The total estimated value of Rollin’s separate property was listed as $273,549.41. Additionally, Rollin’s declaration asserted that at the time of his marriage to Kathleen in 1995, he already owned the Notre Dame Avenue property, the 1932 Ford and the retirement funds (which he allegedly did not contribute to during the marriage).
On November 18, 2003, the trial court granted the petition, and the property identified in exhibits C and D to the petition was “transferred to petitioner, Rollin F. Silveira, and transmuted into his sole and separate property” (capitalization omitted). The trial court found that the allegations in the petition “[were] true and correct,” and held “the proposed transaction [was] one that should be authorized under Probate Code [section] 3101 because it [was] for the advantage, benefit and best interests of the spouses and their estate, and for the care and support of the spouses.”
Rollin filed a petition for the dissolution of his marriage on July 13, 2004, eight months after the probate petition was granted. Rollin’s declaration in the trial court asserted the following explanation: “While my wife was hospitalized[,] she, presumably as a result of her illness, became a very difficult and argumentative person. Her personality had changed and she became verbally abusive to me. On any number of occasions she used foul language and literally cussed me out while I was visiting her. In the early summer of 2004[,] I concluded that there was no future for our marriage .…” The dissolution petition requested that the court confirm, as Rollin’s separate property, the same assets that were transmuted to his separate property in the prior probate petition. A default dissolution judgment was entered on February 8, 2005.
Rollin’s counsel in the divorce proceedings, Samuel Tenenbaum, stated in his declaration that the case went forward as a default or uncontested matter only after he received a letter from Geraldine Brown, an attorney for Kathleen, indicating that Kathleen was not interested in getting money since it would just go to the nursing facility.
On October 4, 2005, Nancy Powell was appointed as conservator of the person and estate of Kathleen Silveira. A petition to set aside the dissolution judgment was granted by order filed on August 2, 2006.
On October 12, 2006, Kathleen, by and through her conservator, Powell, filed an amended notice of motion to set aside the November 18, 2003 order by which Kathleen’s community property was transmuted to Rollin’s separate property under section 3100 et seq. The motion claimed the order was obtained by extrinsic fraud and in violation of fiduciary duties to Kathleen. It alleged Rollin intended all along to seek a divorce and took advantage of Kathleen’s condition. Among other things, the motion pointed out that Rollin’s divorce papers listed October 1, 2002 as the date of separation.
Rollin filed opposition to the motion. He explained that when the prior order was obtained he had no intention of divorcing Kathleen, and that the sole purpose of seeking the transmutation of community property was to qualify Kathleen for Medical benefits due to the financial burden of her nursing home care. Additionally, both Rollin and his divorce attorney (Mr. Tenebaum) stated in their declarations that the reference to a marital separation date of October 1, 2002 in Rollin’s dissolution petition was plainly a mistake or typographical error.
On December 5, 2006, the trial court denied the motion to set aside the prior order. The trial court explained, “[Kathleen] has failed to present sufficient evidence to meet her burden of proof of showing extrinsic fraud, and the motion is therefore denied.” Kathleen timely filed a notice of appeal.
DISCUSSION
Kathleen’s appeal does not claim the trial court lacked authority to issue its order transferring community property assets to Rollin pursuant to section 3100 et seq. Rather, she contends that the trial court abused its discretion when it failed to set aside its order in the face of clear evidence of extrinsic fraud, breach of fiduciary duty and procedural error. For reasons set forth hereafter, we disagree.
I. Standard of Review
“Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 331; and 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 356, pp. 404-405.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (In re Marriage of Rosevear, supra, at p. 682.) The burden is on the complaining party to establish abuse of discretion. (Blank v. Kirwan, supra, at p. 331.)
“Of course, the discretion of a trial court is not an uncontrolled power. A proper exercise of judicial discretion requires the exercise of discriminating judgment within the bounds of reason, and an absence of arbitrary determination, capricious disposition, or whimsical thinking. A court must know and consider all the material facts and legal principles essential to an informed, intelligent, and just decision in the particular case before it.” (In re Marriage of Rosevear, supra, 65 Cal.App.4th at pp. 682-683.) “[A]n abuse of discretion occurs when, after calm and careful reflection upon the entire matter, it can be fairly said that no judge would reasonably make the same order under the same circumstances.” (In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 114.) However, the showing on appeal is insufficient if it merely presents a state of facts which affords an opportunity for a difference of opinion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
II. Overview of Proceedings under Section 3100 et seq.
Preliminarily, we believe it is helpful as background to briefly consider the nature of the statutory proceedings which led to the order transmuting community property.
Section 3101 provides: “A proceeding may be brought under this chapter for a court order authorizing a proposed transaction, whether or not the proposed transaction is one that otherwise would require the joinder or consent of both spouses, if both of the following conditions are satisfied: [¶] (1) One of the spouses is alleged to lack legal capacity for the proposed transaction, whether or not that spouse has a conservator. [¶] (2) The other spouse either has legal capacity for the proposed transaction or has a conservator.” (§ 3101, subd. (a).) The term “transaction” means a transaction that involves community real or personal property, and for good cause may include property in which a spouse has a separate property interest. (§ 3100.) The transactions subject to such proceedings include, but are not limited to, those listed in section 3102. (§ 3102.) “A proceeding may be brought under this chapter … by a spouse having legal capacity for the proposed transaction, without the necessity of appointing a conservator for the other spouse.” (§ 3113.) Court approval of a proposed transaction in a proceeding under said provisions “avoids the need to establish a conservatorship for a spouse lacking legal capacity merely to accomplish that transaction.” (20 Cal. Law Revision Com. Rep. (1990) p. 1352.)
The contents of the petition must include the information set forth at section 3121, including a sufficient description of the property that is subject to the proposed transaction, the characterization of the property (i.e., community property), its value, the terms and conditions of the proposed transaction, and the relief requested in the petition. (§ 3121.) Under section 3122, the petition must also state “Facts that may be relied upon to show that the authorization sought is for one or more of the following purposes: [¶] (1) The advantage, benefit, or best interests of the spouses or their estates. [¶] (2) The care and support of either spouse or of such persons as either spouse may be legally obligated to support. [¶] (3) The payment of taxes, interest, or other encumbrances or charges for the protection and preservation of the community property.” (§ 3122, subd. (d).)
For purposes of notice, the clerk of the court must issue and serve a citation to the nonpetitioning spouse alleged to lack legal capacity for the proposed transaction, setting forth the time and place of hearing and attaching a copy of the petition. (§ 3130.) Additionally, the petitioner must mail a notice of hearing to all relatives of the nonpetitioning spouse within the second degree. (§§ 3121, 3131.) If a spouse alleged to lack legal capacity is not otherwise represented, the court may in its discretion appoint the public guardian, public administrator, or a guardian ad litem to represent the interests of the spouse. (§ 3140.) The incompetent spouse must be produced at the hearing and be informed by the court of the right to have an attorney appointed, but these latter requirements do not apply if is established by affidavit of a medical doctor that the incompetent spouse is medically unable to attend the hearing. (§§ 3141, 3142.)
Finally, the court may authorize the proposed transaction if it determines, among other things, that one of the spouses has legal capacity for the proposed transaction (and joins in or consents to it), the other spouse lacks legal capacity for the proposed transaction, and the proposed transaction is “one that should be authorized under this chapter.” (§ 3144, subd. (a).)
Section 3144, subdivision (b) further provides: “If the proposed transaction is to provide gifts or otherwise affect estate planning of the spouse who is alleged to lack capacity, as would be properly the subject of a petition under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 (substituted judgment) in the case of a conservatorship, the court may authorize the transaction under this chapter only if the transaction is one that the court would authorize under that article.”
In its November 18, 2003 order granting Rollin’s petition to authorize the transmutation of community property and other assets, the trial court expressly held that (1) all of the allegations of the petition were “true and correct,” (2) Rollin had legal capacity for the proposed transaction and joined in and consented thereto, (3) Kathleen lacked legal capacity for the proposed transaction and was financially unable to manage her own financial resources, and (4) the proposed transaction was one that should be authorized under section 3101 “because it [was] for the advantage, benefit and best interests of the spouses and their estate, and for the care and support of the spouses.” The latter finding by the trial court implicitly adopted the main rationale for relief, as set forth in the petition, that the transmutation of the property was in the spouses’ best interest because it would qualify Kathleen for Medical assistance and thereby preserve their assets from depletion. The requirement that Kathleen personally attend the hearing was dispensed with, due to showing of medical inability to attend.
III. No Abuse of Discretion Shown
As noted, Kathleen’s motion to set aside the order transmuting community property was denied by the trial court due to a failure to adequately establish extrinsic fraud. Kathleen asserts the trial court erred because there was clear evidence showing extrinsic fraud, breach of fiduciary duty and procedural error. We now address these contentions under the standard of review for abuse of discretion.
A. No Abuse of Discretion in Failure to Find Extrinsic Fraud
A judgment or decree may be set aside on equitable grounds “if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case. [Citation.] The grounds for such equitable relief are commonly stated as being extrinsic fraud or mistake. However, those terms are given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342 [husband’s concealment from the court that his wife was unable to attend hearing due to deportation constituted extrinsic fraud].) “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471; see also 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 223, p. 727.) “‘Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, -- these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.’ (United States v. Throckmorton (1878) 98 U.S. 61, 65-66.)” (Kulchar v. Kulchar, supra, at p. 471.)
Typical examples of extrinsic fraud in proceedings between husband and wife include the following, as summarized in In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, at page 1069: (a) “Concealment by one party of the existence of a community asset, or prevention of participation in the proceeding by the other party, including a failure to disclose to the court the inability of the other party to participate[,]” (b) “Failure to give notice of the action to the other party, or proceeding to obtain a judgment without the knowledge of the other party, while reconciled with him or her[,]” (c) “Convincing the other party not to obtain counsel because the matter is not going to proceed[,]” and (d) “Completion of the dissolution after having represented to the other party that it would not proceed without further notice.”
We note that under Family Code sections 2121 and 2122, in the course of dissolution proceedings, a spouse may be relieved from a prior judgment adjudicating support or division of property after the six-month time limit of section 473 of the Code of Civil Procedure, based on grounds and subject to time limitations stated in section 2122. The grounds for setting aside such judgments include extrinsic fraud, perjury, duress and mental incapacity. (Fam. Code, § 2122.)
Additionally, extrinsic fraud or mistake may be found to exist in cases in which one party is mentally incompetent and the other party seeks to gain an advantage by failure to either inform the court or have a guardian ad litem appointed. (See Olivera v. Grace (1942) 19 Cal.2d 570, 578; Saunders v. Saunders (1958) 157 Cal.App.2d 67, 73; Dei Tos v. Dei Tos (1951) 105 Cal.App.2d 81, 83; 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 232, pp. 742-744.) We believe such cases are distinguishable from the one before us, because in the proceedings authorized under section 3100 et seq., as in the present case, the trial court is specifically informed that one spouse is incompetent and has no conservator, and the main purpose of such proceedings is to give a trial court discretion to authorize particular transactions upon a proper showing, notwithstanding such incompetence on the part of one spouse. (§§ 3101, 3113.)
We now turn our attention to the showing made in connection with the motion to set aside the probate court order. Kathleen asserted, among other things, the following facts or circumstances in support of her claim of extrinsic fraud: (1) Rollin filed for dissolution of the marriage only eight months after the petition transferring all of the couple’s community property assets to him as his sole and separate property was granted; (2) Rollin’s petition for dissolution of marriage stated a date of marital separation of October 1, 2002, which was before the probate petition was filed; (3) Rollin obtained an advantage by virtue of the order, while Kathleen, who was mentally incompetent and unable to protect herself, was left financially destitute; and (4) Rollin’s dissolution petition sought to confirm that all of the property was his separate property.
In opposition to the motion, Rollin asserted by declaration that when the prior order was obtained he had no intention of divorcing Kathleen, and that the purpose of seeking the transmutation of community property was to qualify Kathleen for Medical benefits due to the financial burden of her nursing home care, which in fact was accomplished. The action was taken at the advice of an elder law attorney, Mr. King, who set forth a declaration corroborating the reasons for obtaining the probate court order. Rollin asserted that his decision to file for divorce was not made until “early summer of 2004,” months after the probate court proceeding, and was due to his wife’s drastic personality changes and abusive behavior toward him, as a result of the disease process. Additionally, both Rollin and his divorce attorney (Mr. Tenenbaum) stated in their declarations that the reference to a marital separation date of October 1, 2002 in Rollin’s dissolution petition was plainly a mistake or typographical error. Rollin asserted that he visited his wife daily through the time that the petition for dissolution was filed, and aside from her need for medical and custodial care in the nursing home which began in October of 2003, there was never a “break” or separation in the marital relationship as such until approximately “May of 2004” when he decided he could “no longer live as [he] had been living and needed to terminate the relationship .…” Tom Sewell, a neighbor and friend of Rollin, submitted a declaration that Rollin visited his wife daily and “He acted and talked as one would expect of a loving and concerned spouse whose wife was undergoing major health problems.”
Based on the evidence summarized above, it is clear the trial court had a sufficient factual basis to reasonably conclude that when Rollin obtained relief under section 3100 et seq., he had no intention to divorce his wife, and instead sought in good faith to qualify her for Medical eligibility and to protect assets from dissipation by means of a process recommended by his attorney. “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 682.) Although the trial court could have reached the opposite conclusion, we cannot say it was compelled to do so as a matter of law. The state of the evidence was such that the trial court could reasonably hold that Kathleen failed to establish extrinsic fraud. Accordingly, no abuse of discretion has been shown.
B. No Abuse of Discretion in Failure to Find a Breach of Fiduciary Duty
Next, Kathleen contends the probate order should have been set aside based on her showing of breach of fiduciary duty. Of course, the existence of a fiduciary relationship between husband and wife is beyond question. A husband and wife have “toward each other obligations of mutual respect, fidelity, and support.” (Fam. Code, § 720.) Further, in transactions between themselves, “a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” (Fam. Code, § 721, subd. (b).) In view of this fiduciary relationship, “a rebuttable presumption of undue influence arises when one spouse obtains an advantage over another in a community property transaction.” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 297.) The burden of dispelling the presumption rests on the spouse who gains an advantage in a transaction. (Ibid.; see also In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 629-630.)
Kathleen argues that the transmutation of community property, which is the subject “transaction,” conferred on Rollin a property “advantage” and therefore the presumption of undue influence should have been applied by the trial court when Kathleen moved to set aside the order. We disagree. First, the “transaction” was specifically authorized in a judicial proceeding designed to protect the interests of both spouses, and was based upon a finding that it was for the advantage, benefit and best interests of the spouses and their estate, and for the care and support of the spouses. No precedent has been provided for an application of the presumption of undue influence to a transaction that has been subject to specific judicial scrutiny and approval. Second, the presumption of undue influence does not apply with respect to an order or judgment that has become final, but rather the burden is on the moving party to establish the grounds for relief. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 87.) Third, for the same reasons discussed above regarding the question of extrinsic fraud, the evidence in opposition to the motion to set aside the probate order was sufficient to establish that the transaction was not a result of undue influence or a breach of fiduciary duty. Accordingly, we are unable to conclude the trial court abused its discretion when it failed to set aside the prior order based on alleged breach of fiduciary duty.
C. No Prejudicial Procedural Error Shown
Finally, Kathleen argues there has been “procedural” error. Although the nature of the claimed procedural error is not clearly identified, it appears that Kathleen believes the trial court should have appointed a guardian, conservator or guardian ad litem at the time of the probate proceeding in which Rollin requested approval of the transmutation of community property assets under 3100 et seq. As to the lack of conservator, the statute expressly provides for approval by the trial court of transactions when one spouse lacks capacity without the necessity of appointing a conservator. (§ 3101.) And although a court has discretion to appoint a public guardian, public administrator or guardian ad litem, it is not required to do so. (§ 3140, subd. (b).) No authority is presented to mandate such appointment in the present case. On the record before us, we are unable to conclude the trial court erred as a matter of law when it failed to appoint a public guardian, conservator or guardian ad litem at the time Rollin’s petition was heard.
Kathleen also asserts there was procedural error based on the fact that the trial court did not apply a “substituted judgment” test, which is the test to be applied in determining whether gifts or other distributions of a conservatee’s estate should be approved. (See § 2582; Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1251.) Although no conservatorship existed in the present case, section 3144, subdivision (b), arguably requires a trial court to apply a substituted judgment test in the case of proposed transactions that involve provisions of “gifts” or which “otherwise affect estate planning.” Even if such error occurred in the present case, we are mindful of the limited grounds upon which a final judgment may be set aside. Although we have referred to the trial court’s ruling on Rollin’s petition under section 3100 as an order, it also constitutes a final judgment in regard to those special proceedings. Absent a showing of extrinsic fraud or mistake, the policy favoring the finality of judgments will prevail. (See Kulchar v. Kulchar, supra, 1 Cal.3d at p. 472; In re Marriage of Kieturakis, supra, 138 Cal.App.4th at p. 89; 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, §§ 214, 223-232, pp. 718-719, 727-744.) Since Kathleen failed to establish extrinsic fraud or mistake in this case, we conclude the trial court did not abuse its discretion in failing to set aside the judgment, notwithstanding the potential “procedural” errors raised by Kathleen herein.
We do not reach the issue of whether the substituted judgment test should have been applied in the circumstances of the transaction here.
DISPOSITION
The judgment is affirmed. Rollin is entitled to costs on appeal.
WE CONCUR: Gomes, Acting P.J., Dawson, J.