Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 14051
SIMS, Acting P. J.Loretta Demele (daughter) appeals from a probate court order denying her petition for a conservatorship of the person and estate of her mother, Wilma Jo Radulovich (mother) under Probate Code section 1801. (Undesignated statutory references are to the Probate Code; § 1301, subd. (a) [denial of conservatorship is appealable].) Daughter contends uncontradicted evidence demonstrated the need for a conservatorship. We shall affirm the judgment (order).
Wilma Jo Radulovich died while this appeal was pending. Her death does not abate the appeal. (Code Civ. Proc., §§ 377.20-377.22, 377.40-377.43; Conservatorship of McDowell (2004) 125 Cal.App.4th 659, 664, fn. 5, overruled on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816.)
Opposing counsel has not opposed the request of Radulovich’s attorney that the appeal not be dismissed as moot, and we decline to dismiss the appeal as moot.
In general, a representative of the deceased must be substituted in as a party. (Code Civ. Proc., § 377.41; 1A Cal.Jur.3d (2006) Actions, §§ 283-284, pp. 373-374.) However, no purpose would be served by requiring substitution in this case, where the appeal was already briefed and submitted to this court (and oral argument was waived) before Wilma Jo Radulovich’s death on August 11, 2008. (Code Civ. Proc., § 669 [if party dies after submission of the case to a judge sitting without a jury and before judgment, the court may nevertheless render judgment thereon]; 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 261, p. 336.) Such judgments, including appellate decisions affirming trial court orders, are typically entered nunc pro tunc to the day before the person died (Black v. Shaw (1862) 20 Cal. 68; Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal.App.4th 1311; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, §§ 60, 62, pp. 595, 597). Accordingly, our decision affirming the trial court’s order will be entered as of August 10, 2008, nunc pro tunc.
FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 2007, daughter filed a petition for appointment of probate conservator of mother’s person and estate. The petition alleged mother was unable to provide for her personal needs and unable to manage her financial resources or resist undue influence.
Daughter initially sought to be named conservator (and was initially appointed temporary conservator) but -- in the face of family disputes -- daughter presented at the hearing a “private professional conservator” who was willing to serve as conservator.
Mother testified as first witness of the morning and again after lunch, when she explained her morning testimony “wasn’t [her] finest hour,” because she had not had much rest, due to worrying about this case. She felt more awake after lunch.
Mother testified she was born in 1931. Her formal education ended at the sixth or seventh grade. Her husband of 58 years handled most of the finances until he died in 2004. She is the trustee of the family trust, which includes several pieces of real property and bank accounts. Mother’s sons, Leo and Mitchel, are successor trustees. Mother has differences with daughter and therefore removed daughter as a successor trustee. When shown the bank statement, mother was able to read the balance but was unable to say how much was in each of the separate accounts. (Daughter observes the figures are easily ascertained from the document, which is contained in the clerk’s transcript.) After the lunch recess, mother was able to answer “roughly” how much was in the accounts (though she understated one of them).
Mother’s son, Leo, lives with her in her home, which has always been heated by a wood-burning stove, supplemented by an electric heater and the kitchen butane stove. (Leo testified they did not use the stove for heat because that would be dangerous.) Leo does not pay rent, because he helps around the house; she tells him what to do. He drives her where she wants to go. She no longer drives because a cataract impairs her vision. She planned to pursue treatment for the eye but is concerned that surgery may leave her blind in that eye.
The preceding winter, December 2006 into January 2007, mother and Leo ran out of wood for about a month and had no way to haul more wood. The electricity went off at one point. Leo ordered a big butane tank, but it took a month to arrive. During this time, mother got sick, stayed in bed for a month because the house was cold, and got a bad skin infection in the legs and groin area. She called her doctor, but he was sick with pneumonia. Leo took her to the hospital when she asked him to do so. They told her she is diabetic. When released from the hospital, she went to a rehabilitation facility. When she returned home, Butte Home Healthcare made home visits, but she turned them away because they came too often and bothered her. It was her idea, not Leo’s, to turn them away.
Mother testified it was her idea, not Leo’s, for her to use a walker, but admitted she may have told the psychologist it was Leo’s idea.
There are two bathrooms in her home. One bathroom has a “pan shower” that is unusable. She asked Leo to fix it, and he tried, but it still does not work. The other bathroom has a shower in the bathtub, which is hard for her to get in and out of, so she showers about once a week and bathes herself with a washrag other days.
Mother said Leo sometimes listens in on her phone calls, but only when she wants him to do so. Leo has a temper but does not yell at her.
Psychologist Claire DeWitt Fields testified she conducted the court-ordered psychological examination of mother. Mother scored above average on a mental state examination. She did extremely well on the nonverbal part of neuropsychological tests but received scores indicating impairment on the mathematics and language parts of the test. Her overall score reflected mild impairment in verbal expression, visual memory, and sequencing. Fields found the test results confusing. She ruled out early dementia.
Fields opined that (assuming absence of any brain lesions) mother probably has an auditory processing disorder (beyond mere lack of formal education) and may have been born with it. Fields opined mother would be confused by simple contracts or rapid speech using complex language but would understand numbers in bank statements.
Fields was upset that Leo yelled at her over the phone when she called to ask for more tests. He asked her if mother’s attorney was going to be there. She said she hoped not (because, as she later explained, she felt the presence of an attorney compromised her ability to establish a relationship with mother, even if he stood out of mother’s view). Leo said the lawyer had to be there. Fields was concerned that Leo would lose his temper so easily, and she worried he might lose his temper with mother.
When asked if mother would be able to resist undue influence, Fields said mother could be influenced if she was confused.
Fields expressed concern that mother was influenced to use a walker by Leo, which Fields thought might not be a good idea -- not because of any medical expertise Fields had, but based on her own personal experience of having her hip replaced. When asked if she were concerned about Leo caring for mother, Fields said she identified with mother, who is eight years older than Fields, and if Fields were ill, she would hope her own offspring would not wait two weeks to get help. Fields was concerned about mother being so sick before getting help (though Fields did not ask her about it).
Fields is concerned that mother could be manipulated because she does not want to make waves. People with auditory processing disorders “tend to have low self esteem.”
Daughter testified she lives in Nevada. She last visited mother’s home more than two years ago because she (daughter) has issues with Leo, whom she suspected of having poisoned their father.
Leo testified he lives with mother rent-free but helps around the house, maintains the yard, and drives her wherever she wants to go. He listens in on phone calls at her request.
Mother’s other son, Mitchel, testified to his mother’s strong will. He and his family live on one of the family trust properties. They do not pay rent, but they take care of the property.
Court investigator Carol Lombard submitted a report (§§ 1454 [qualifications of court investigator]; 1826) opining, based on interviews at mother’s home, that mother understands the proceedings, does not need a conservatorship, has the capacity to give informed consent regarding medical treatment, and has legally named her two sons as conservators in the event she needs a conservator in the future.
Section 1826 calls for the court investigator to make various determinations about the proposed conservatee’s understanding of the proceedings, and “[c]onsider, to the extent practicable, whether [the court investigator] believes the proposed conservatee suffers from any of the mental function deficits listed in subdivision (a) of Section 811 [alertness, information-processing, thought processes, etc.] that significantly impairs the proposed conservatee’s ability to understand and appreciate the consequences of his or her actions in connection with any of the functions described in subdivision (a) or (b) of Section 1801 [ability to provide for physical health, food, clothing, and shelter, and ability to manage own financial resources] and identify the observations that support that belief.” (§ 1826, subd. (d)(2).)
The trial court issued a written memorandum decision denying the petition, stating in part:
“After the proposed conservatee testified, this Court agreed with the recommendation of the investigator. This woman is strong-willed, and very capable of handling her affairs. The Court does not find that the medical problem (rash) over eight months ago is sufficient, by itself, to grant the Petition. Clearly, her son, Leo, should have reacted to the medical problem sooner. He did, however, get her to the clinic, and then to the hospital. She appears to be doing very well today, both physically and mentally.
“Leo does not have a valid reason for not fixing the shower, and/or installing central heat and air so that his mom can live in comfort her last years. Blaming the lack of repair on his dad is no longer reasonable. Besides, any improvement to the house would increase the value of the home. Notwithstanding, the Court cannot say that the lack of those things is not a life choice made by the proposed conservatee. After all, she has lived that way since she has lived at the residence. Lastly, there was no evidence suggesting that the method of bathing is affecting her health. It is not the preferred choice for bathing, but that does not make it wrong.
“This woman can take care of herself. She wants to maintain her current living situation. Specifically, she wants to live in her own home. She wants Leo to continue to live with her, as he is an important part of her life. She does not want a conservatorship. If she thought otherwise, she would want one of her sons to be appointed as her conservator. By this ruling, the Court was not persuaded by the testimony of the licensed psychologist.”
On August 23, 2007, the court entered an ORDER DENYING PETITION FOR CONSERVATORSHIP, from which daughter filed a timely appeal.
DISCUSSION
I. Legal Framework
Section 1801 authorizes the court to appoint:
(1) A conservator of the person “for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter” (subject to exceptions); and/or
(2) A conservator of the estate “for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence [subject to exceptions]. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.” (§ 1801, subds. (a)-(b).)
“The standard of proof for the appointment of a conservator pursuant to [section 1801] shall be clear and convincing evidence.” (§ 1801, subd. (e).)
Hearings of conservatorship petitions are conducted according to the law and procedure relating to the trial of civil actions. (§ 1827.)
II. No Grounds For Reversal
Daughter’s sole contention, presented under two headings, is that the testimony of psychologist Fields was not inherently improbable and was not contradicted, and therefore it cannot be disregarded as proof of the need for a conservator, on both grounds -- (1) inability to manage finances and resist undue influence, and (2) inability to provide for health, food, clothing, or shelter. Although daughter frames her contention as being that the psychologist’s testimony “cannot be disregarded,” the trial court did not disregard it, and daughter is really claiming the trial court was required to accept it as proof of the need for a conservatorship. We disagree.
The only authority cited by daughter for this proposition is Krause v. Apodaca (1960) 186 Cal.App.2d 413 (Krause), which held a jury was not free to reject the uncontradicted, unimpeached testimony of two experts regarding the cause of a fire, in a landlord’s lawsuit alleging the tenant negligently caused the fire. Krause stated the general rule that unimpeached, uncontradicted testimony which is not inherently improbable should be accepted as true. (Id. at p. 417.)
Respondent’s brief claims Krause is inapplicable because it was a negligence case with a preponderance of evidence standard, rather than the clear-and-convincing evidence standard at issue here.
We reject daughter’s reliance on Krause, but not for the reason advanced in respondent’s brief.
First, though not addressed by the parties, it appears the court investigator, whose written report (§ 1826, fn. 1, ante) contradicted Fields’s opinion, might be considered an expert, because “[t]he person appointed as the court investigator shall have the following qualifications: [¶] (1) The training or experience, or both, necessary (i) to make the investigation required under this division, (ii) to communicate with, assess, and deal with persons who are or may be the subject of proceedings under this division, and (iii) to perform the other duties required of a court investigator. [¶] (2) A demonstrated sufficient knowledge of law so as to be able to inform conservatees and proposed conservatees of the nature and effect of a conservatorship proceeding and of their rights, to answer their questions, and to inform conservators concerning their powers and duties.” (§ 1454, subd. (b).)
Second, even assuming for the sake of argument that the court investigator was not an “expert” contradicting Fields’s opinion, the trial court was not required to adopt Fields’s opinion. Thus, Krause acknowledged the general rule that the trier of fact may reject uncontradicted testimony as long as he or she does not act arbitrarily. (Krause, supra, 186 Cal.App.2d at p. 419.) The problem in Krause was that, even accepting the tenant’s version of what happened, his evidence failed to advance his cause because it left the record devoid of any reasonable explanation or suggestion of the cause of the fire, other than the defendant’s own negligence. (Id. at p. 418.)
Moreover, more recent authority clarifies that expert opinion is not conclusive on the trier of fact (except in certain malpractice cases). (Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 508-509.) “[A]s a general rule expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary. The statements of this principle appear often: ‘As a general rule, “[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” . . . [¶] The single exception to the general rule is in medical malpractice cases, where the standard of care, when testified to by experts, who are uncontradicted, may be conclusively shown by such testimony. . . . [¶] . . . [¶] In sum, the better statement of the point in question is the near-truism that the jury should not arbitrarily reject testimony from the witnesses. There is no need to further assert some testimony is ‘conclusive’ . . . .” (Id. at p. 509.)
“So long as it does not do so arbitrarily, [a trier of fact] may entirely reject the testimony of a plaintiff’s expert, even where the defendant does not call any opposing expert and the expert testimony is not contradicted. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.)
Thus, daughter is incorrect in her view that a trial court in this type of case must accept as conclusive the opinion of a sole expert witness.
Here, the psychologist’s testimony was contradicted by other evidence -- including the investigator’s report concluding mother did not need a conservator, mother’s own lucid testimony, and the testimony of her sons. Additionally, the psychologist’s testimony revealed that, to some extent, she was projecting her own fears and experiences onto mother.
Accordingly, we reject daughter’s contention that the trial court was required to accept the opinion of psychologist Claire Fields.
To the extent daughter otherwise challenges sufficiency of the evidence, she forfeits the challenge by failing to acknowledge the evidence favorable to the judgment (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881) and by failing to present separate points under appropriate headings (Cal. Rules of Court, rule 8.204). For example, under the heading that the psychologist’s testimony cannot be disregarded, daughter claims there is “uncontradicted evidence” of missing money from rental of trust property at $500 per month. Daughter cites copies of bank statements in the clerk’s transcript which assertedly show an absence of $500 deposits for two months. However, the bank statements show deposits exceeding $500, and daughter fails to cite to any trial testimony interpreting the bank statements as evidence of missing money. Mother testified she puts the money in the bank and most of the time uses it to pay bills. In any event, even assuming some rent money is missing from the bank statements, “Substantial inability [to manage finances] may not be proved solely by isolated incidents of negligence or improvidence.” (§ 1801, subds. (a)-(b).)
The evidence in this case clearly supports the judgment. “In determining whether a judgment is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.)
We conclude daughter fails to show grounds for reversal.
DISPOSITION
The judgment (order) is affirmed as of August 10, 2008, nunc pro tunc. Mother shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: DAVIS, J., RAYE, J.