Opinion
A157185
06-25-2020
Conservatorship of the Person and Estate of Katherine M. Dubro. ROBERT DUBRO, et al., Objectors and Appellants, v. DENNIS DUBRO, et al., Petitioners and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HP11595568)
Four siblings—Robert Dubro, Michael Dubro, Maureen Shroyer and Mary Jean Howard (collectively, Appellants)—appeal the probate court's order granting the petition of a fifth sibling—Dennis Dubro—for reimbursement of attorney fees and costs he incurred in connection with the establishment of a conservatorship for their mother, Katherine Dubro (Mother). We affirm.
To avoid confusion, we refer to the siblings individually by their first names. No disrespect is intended.
BACKGROUND
We grant Dennis's February 3, 2020 motion to strike from the record on appeal records filed in the probate court after the appealed-from order issued. (See California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442 (California Farm) [" ' "[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." ' "].) These include exhibits submitted with a previous writ petition; even assuming Appellants properly incorporated these exhibits into the record on appeal, the exhibits were all records filed after the appealed-from order issued. We deny as irrelevant Dennis's February 6, 2020 request for judicial notice of a 2015 transcript from a different proceeding involving some of the same parties.
In 2015, Dennis filed a petition for a conservatorship of the person and estate of Mother, alleging she had dementia. Maureen, who at the time was Mother's attorney in fact, and Robert, who at the time was trustee of the family trust, objected. The probate court appointed a guardian ad litem for Mother. After a nine-day trial on Dennis's conservatorship petition, the probate court granted the petition, revoked Maureen's power of attorney, and appointed the professional fiduciary requested by Dennis as the conservator of Mother's person and estate (the Conservator). The statement of decision from the conservatorship trial describes a long and contentious dispute between the siblings—primarily Maureen and Robert on one side, and Dennis on the other—regarding the management of Mother's care and finances.
After the conservatorship trial, Dennis filed a petition to be reimbursed by Mother's estate for more than $300,000 in attorney fees and costs he had incurred in connection with the conservatorship petition. The petition was hundreds of pages long, including detailed billing records and invoices for costs. Appellants, in propria persona at the time, raised objections to the petition.
The Conservator initially requested a continuance of the hearing on Dennis's reimbursement petition to allow the parties a reasonable opportunity to review it. In the alternative, if the probate court would not continue the hearing, the Conservator objected that the amount requested was excessive. After the hearing was continued and the Conservator had reviewed the reimbursement petition and history of the proceedings, he withdrew his objection, concluding Dennis "really did have to spend the money to prove the case."
Mother's guardian ad litem did not oppose the reimbursement petition, explaining: "[F]or [Dennis] to succeed with his contested [conservatorship] petition, it became necessary for him to prove the details of why the alternatives [to conservatorship] were not working. Given the long history and the unusual nature of the events in this family dynamic, that unfortunately took several days of trial." The guardian ad litem also noted that, "[g]iven the size of her estate, the amount of the fees and costs incurred does not adversely affect [Mother] or importantly, her care."
The probate court appointed a special master to review Dennis's reimbursement petition. The special master's report found "the high cost of this litigation is primarily due to [Maureen and Robert's] efforts to oppose [the Conservator]'s appointment." The report discussed various objections raised by Appellants and concluded, "based on a review of the fees requested, I . . . believe them to be generally reasonable under the circumstances." The special master noted that the legal fees incurred by Appellants in opposing the conservatorship petition were "paid out of [Mother's] trust" and "likely exceeded the amount" requested by Dennis. The special master recommended the probate court grant Dennis's reimbursement petition with a minor reduction in the amount requested.
The probate court issued a written order adopting the special master's report. The court found the requested fees were not unreasonable or grossly excessive, finding the fact that Appellants spent slightly more in attorney fees to oppose the conservatorship "is persuasive evidence that the fees spent by [Dennis] could not have been unreasonable or excessive." The court granted Dennis's reimbursement petition with the minor reduction recommended by the special master.
DISCUSSION
I. Issues Forfeited or Not Properly Before Us
We begin by identifying issues briefed by some or all of the parties that are forfeited or not properly before us.
First, the appealed-from probate court order also awarded fees and costs to the Conservator and his attorney. The Conservator filed a response brief in this court arguing this order was proper. However, Appellants' briefs on appeal do not discuss any background facts relating to this aspect of the probate court's order, nor do they argue this portion of the probate court's order was erroneous. Any challenge to the probate court's order awarding fees and costs to the Conservator and his attorney is thus forfeited. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 (Tellez) ["On appeal we need address only the points adequately raised by plaintiff in his opening brief on appeal."].)
Second, Appellants purport to incorporate by reference a petition for writ of mandate filed in connection with a different order in Mother's conservatorship proceedings. The cited authority, California Rule of Court, rule 8.882(a)(5), applies only to proceedings in the appellate division of the superior court (Cal. Rules of Court, rule 8.800). In this court, appellate briefs must "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, 8.204(a)(1)(B).) It is impermissible "to incorporate by reference arguments advanced in other appellate briefs. We therefore disregard these purported incorporations by reference." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.)
Third, any challenge to the conservatorship trial is not before us. The letters of conservatorship issued in 2017 as a result of the trial and were immediately appealable. (Prob. Code, § 1301, subd. (a).) No timely appeal was filed and review of this order is now foreclosed. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 304 [" ' "If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review." ' "].) Accordingly, to the extent Appellants purport to raise challenges to the conservatorship trial, such challenges are not properly before us.
Finally, we decline to address arguments raised by Appellants for the first time at oral argument. (Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 291 [" 'We do not consider arguments that are raised for the first time at oral argument.' "].)
II. Appointment of Counsel for Mother
Appellants argue the probate court erred in failing to appoint counsel for Mother to review Dennis's reimbursement petition. We disagree.
A. Additional Factual Background
In May 2016, before the conservatorship trial, the probate court appointed an attorney to represent Mother. At a hearing the following month, the court-appointed attorney represented that Mother was "unable to instruct me" and "I really don't know if she would prefer a neutral to be able to step in and referee her family members." The attorney noted Mother was "a very frugal person" and "has a guardian ad litem who is doing a great job in her best interests." Therefore, "[t]o save her funds," the attorney requested to be relieved. The court granted the request. No party provides record citations showing the issue was subsequently raised again.
In their reply brief, Appellants assert related facts, without record support, that purportedly took place following the appealed-from order. We disregard these assertions. (California Farm, supra, 51 Cal.4th at p. 442.)
B. Legal Principles
Despite Appellants' argument to the contrary, a probate conservatee does not have a due process right to counsel. "As a general rule, ' . . . there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation." (People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942.) "The probate conservatorship proceeding is conducted under the law and procedure relating to civil actions . . . ." (Conservatorship of B.C. (2016) 6 Cal.App.5th 1028, 1034.) "A probate conservator has no power to place the conservatee in a locked facility, against the will of the conservatee." (Id. at p. 1035.)
Appellants' references to Mother's right to counsel of her choice are puzzling. Mother was not denied counsel of her choice; indeed, Appellants concede Mother lacks the capacity to select counsel of her choice.
For the first time in their reply brief, Appellants argue Mother's lack of counsel violated the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). We decline to consider this belated argument. (Tellez, supra, 240 Cal.App.4th at p. 1066 [" ' " 'points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before' " ' "].)
Instead, the appointment of counsel in probate conservatorship proceedings is governed by statute. The relevant statute here, Probate Code section 1470, subdivision (a), provides: "The court may appoint private legal counsel for . . . a conservatee, or 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."
All undesignated section references are to the Probate Code.
Although Appellants also refer to section 1471, that section only applies in certain proceedings not at issue here.
The probate court's decision to appoint counsel pursuant to section 1470 is discretionary. (§ 1470, subd. (a) ["court may appoint private legal counsel" (italics added)]; Cal. Law Revision Com. com., (1990 ed.) foll. § 1470 ["This section gives the court discretionary authority to appoint legal counsel in guardianship and conservatorship proceedings."].) Accordingly, our review is for abuse of discretion.
We note that, despite respondents' arguments to the contrary, "an inability to communicate is not a reason to deny counsel to a conservatee or proposed conservatee who is otherwise entitled to counsel." (Wendland v. Superior Court (1996) 49 Cal.App.4th 44, 52 (Wendland); see also Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 212 ["When the [conservatee] client is permanently unconscious, . . . the attorney must be guided by his own understanding of the client's best interests."]; Cal. Conservatorship Practice (Cont.Ed.Bar 2020) § 7.26 ["the attorney representing a comatose, otherwise nonresponsive, or totally delusional client must be guided by his or her understanding of the client's best interests in taking positions or making recommendations to the court"].)
C. Analysis
At the time of Dennis's reimbursement petition, Mother's interests were represented by both a guardian ad litem and the Conservator. (§ 1003, subd. (a)(2) ) [probate court may appoint guardian ad litem "to represent the interest of" an "incapacitated person"], § 2101 ["The relationship of . . . conservator and conservatee is a fiduciary relationship . . . ."].) The probate court could reasonably conclude appointment of counsel would not be helpful and was not necessary to protect Mother's interests.
Wendland, supra, 49 Cal.App.4th 44, relied on in Appellants' reply brief, is entirely inapposite. The conservatee in that case had a severe brain injury and his wife, the temporary conservator, sought to be appointed permanent conservator so she could withdraw life-sustaining treatment. (Id. at pp. 46-48.) Other family members disagreed and petitioned for appointment of counsel for the conservatee. (Id. at p. 48.) The Court of Appeal found the probate court abused its discretion in refusing to appoint counsel because the matter was literally one of life or death: "Because [the conservatee's] very life is at stake, he is entitled to counsel to represent his interests, whatever those interests might be." (Id. at p. 52; see also id. at p. 53 (conc. opn. of Raye, J.) ["a conservatee whose right to live may ultimately hinge on decisions made by his court-appointed conservator is entitled to counsel to represent his interests"].) Dennis's reimbursement petition presented no such stakes for Mother.
In sum, Appellants have failed to demonstrate Mother's lack of appointed counsel was an abuse of discretion.
Because of this conclusion, we need not decide Dennis's alternative argument that Appellants forfeited the issue by failing to raise it below or the Conservator's alternative argument that Appellants must show they were prejudiced by any error. --------
III. Reimbursement of Dennis's Attorney Fees and Costs
Appellants next argue the probate court failed to sufficiently scrutinize Dennis's reimbursement petition. We disagree.
"The deciding factor in awarding reimbursement in a conservatorship proceeding is . . . whether expenses were incurred in good faith and in the best interests of the proposed conservatee." (Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198, 1205.) " ' "[T]he determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court . . . ." ' " (Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 549.)
Appellants argue Dennis pursued a "spare no expense" approach and incurred excessive fees because some of the awarded fees were incurred in pursuing "unsuccessful motions and petitions." Appellants fail to identify either the amount of fees they are challenging or the specific unsuccessful motions and petitions pursued by Dennis. " 'In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' " (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) For this reason alone, Appellants' challenge fails. In addition, in probate conservatorships, fees for unsuccessful petitions may be reimbursed where the petitioner "rendered services of value" to the conservatee. (Estate of Moore (1968) 258 Cal.App.2d 458, 464.) Dennis's conservatorship petition was successful and found to be in Mother's best interests. Appellants have neither identified the unsuccessful motions and petitions, nor argued they did not assist Dennis's conservatorship petition or otherwise provide value to Mother. " '[A]n appealed judgment or order is presumed to be correct' and 'error must be affirmatively shown.' " (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939.) Accordingly, we presume the unsuccessful motions and petitions met the standard for reimbursement.
Appellants challenge the probate court's reliance on the fact that they incurred roughly the same amount of attorney fees opposing Dennis's conservatorship petition, arguing this does not support a finding that Dennis's fees were reasonable. To the contrary, "[a] comparative analysis of each side's respective litigation costs may be a useful check on the reasonableness of any fee request." (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272 (Donahue).)
Appellants complain that neither the special master nor the probate court specifically addressed the objections of the Conservator. The Conservator withdrew his objections before the special master was appointed. Appellants cite no authority that either the special master or the probate court was obligated to address withdrawn objections.
Appellants argue the special master and probate court were overly deferential in reviewing Dennis's reimbursement petition. Again, Appellants fail to identify any specific portion of the requested fees they consider unreasonable, other than the fees incurred on unsuccessful motions and petitions. This case is a far cry from Donahue, supra, 182 Cal.App.4th 259, cited by Appellants. In that case, "the trial court charged a trust with some $5 million in past and ongoing attorney fees incurred on behalf of a former trustee in defending against the beneficiary's allegations of self-dealing and conflict of interest. Eight attorneys from three major law firms comprised the former trustee's legal team, with four to five of those attorneys simultaneously appearing at the 14-day court trial." (Id. at p. 262.) The trial court's first order failed either to explain "why the trial court concluded [the former trustee] reasonably incurred attorney fees" or to "expressly specify the amount of the fee award." (Id. at p. 270.) A second order, granting a request for later-incurred fees, specified the amount of the fee award—less than that requested by the former trustee—but failed to explain how it reached the amount. (Id. at pp. 266-267, 270.) The Court of Appeal remanded the fee orders, reasoning that "the lack of detail and explanation in the orders raises the concern the trial court utilized an overly deferential approach to the fee request." (Id. at p. 271.)
Here, the fees and costs were incurred in a proceeding that ultimately served Mother's best interests by establishing a conservatorship for her. The probate court appointed a special master to carefully review Dennis's reimbursement petition; the special master issued a detailed report explaining why the fees were reasonably incurred and specifying the amount of the award, with clearly explained deductions. The probate court adopted the special master's findings. We see no basis for the type of concern raised in Donohue.
In sum, Appellants have failed to demonstrate the probate court's order granting Dennis's reimbursement petition was an abuse of discretion.
IV. Motion for Sanctions
The Conservator filed a motion for sanctions against Appellants' appellate attorney. We agree with some of the Conservator's criticisms of Appellants' briefs, most notably, inadequate record citations, failure to designate an adequate record, and improper reference to events occurring after the appealed-from order. Nonetheless, we decline to consider sanctions for this conduct. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651 ["[Sanctions for frivolous appeals] should be used most sparingly to deter only the most egregious conduct."].)
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.