Opinion
D052972.
4-9-2009
Conservatorship of the Person and Estate of BIBIANA BECERRA. GERRY DONNELLY, Conservator, Petitioner and Respondent, v. VIDA F. NEGRETE, et al., Objectors and Appellants.
Not to be Published in Official Reports
Bibiano Becerra (Conservatee) suffered serious brain and other injuries in a 2003 construction accident and in 2007, he recovered approximately $1.6 million in settlement from one of the companies involved, and those proceedings are held in trust on his behalf (the Trust). Appellant Vida F. Negrete, R.N., Ph.D. (Objector), was the original trustee of the trust, which was created in January 2007 as part of the court approval of the compromise of his claims. The parties to the trust agreement were Objector, as trustee, and Conservatees wife, Liliana Becerra (Wife), as trustor and guardian ad litem.
Shortly thereafter, conflicts arose between Wife and Objector about the use of the trust money and the care of Conservatee. Objector was primarily communicating with and supported by other relatives of the Conservatee (his mother and his brother, Gumaro Becerra, who held differing views than Wife). In November of 2007, Objector initiated this action by filing a petition to establish a conservatorship on the basis that the proposed conservatee could not handle his own affairs and was being unduly influenced by Wife. (Prob. Code, § 1800 et seq.)
All further statutory references are to the Probate Code unless noted.
In response, a private fiduciary, respondent Gerry Donnelly (Donnelly), brought a competing petition with the support of Wife, in the same case file. Donnelly alleged that Conservatee now wanted to have the conservatorship established, as proposed by Wife, because he was unable to deal with the conflicts among different family members. Counsel was appointed for the proposed conservatee (a court appointed attorney, the CAA, Parisa P. Farokhi).
This appeal arises out of rulings by the probate court appointing Donnelly as conservator, at a contested hearing, which Conservatee was found by the court to be unwilling to attend, although he was present at the courthouse that day. In those rulings of April 11 and 25, 2008, the probate court also made related orders, including the creation of a procedure in which a majority of a four-person committee (Donnelly, the CAA, his treating psychiatrist, and the case manager of the facility where he resides) would decide whether relatives or others should be precluded from communicating with the Conservatee as "harmful individuals."
Around the same time, the probate court was holding hearings in a related trust case involving the settlement trust funds, in which Donnelly sought to have Objector removed as the trustee, on the grounds that she had insufficient connection to Conservatee, lacked standing due to the dismissal of her own petition, had not filed trustees reports, and was wasting assets. (D053018, the "trust case"; an appeal in that matter is being heard concurrently with this appeal.)
Objector, joined by the brother of Conservatee, now appeals the conservatorship orders, contending that the appropriate procedural protections were not provided, such that Conservatee did not receive due process and is being represented by parties who do not advocate his real wishes. In particular, Objector claims that the orders were improperly made in the absence of Conservatee, without adequate admonishment to him in the Spanish language of his rights to a jury trial. Alternatively, she appears to contend that clear and convincing evidence does not support the orders. (§ 1801, subd. (e).)
We find that the orders establishing the conservatorship are adequately supported by substantial evidence, including the reports of the mental health professionals and the probate investigator, and they show that all the appropriate procedural protections were afforded to Conservatee. (§§ 1825, 1826.) Under all the difficult circumstances made known to the court, there was no abuse of discretion nor any legal error in the manner in which the trial court proceeded. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Cross-Petitions; Reports; Proceedings
When Conservatee brought a personal injury lawsuit against one of the companies involved in the accident, Rudolph & Sletten, Wife served as his guardian ad litem. Eventually, settlement was reached for $1.6 million in favor of Conservatee, and Wife received her own settlement for loss of consortium ($300,000). In San Diego Superior Court, the settlement and compromise were approved January 4, 2007, including the establishment of a trust to hold Conservatees proceedings, payable in the form of monthly payments to the trust (approximately $6,000 per month). (Becerra v. Rudolph & Sletten (Super. Ct. San Diego County, 2005, No. GIC 842018.) Wife and her two children with Conservatee are discretionary beneficiaries of the trust. There are also ongoing workers compensation proceedings against his employer, in which his other attorney (James M. Stern) is seeking further compensation for him.
In November 2007, Objector brought the initial petition seeking to establish the conservatorship, on the ground that the proposed conservatee did not want Wife to be in charge of his money or his life, and he wished to divorce her. He has not been able to live at home since 2005, and has impulse control disorders and eating disorders due to his injuries. In the petition, Objector represented that there was a Los Angeles court proceeding concerning the trust, BP106987. Pursuant to court order, a capacity declaration was filed by an examining psychologist, Fernando Melendez, Ph.D., dated December 12, 2007, stating that although Conservatee has low average intelligence and is somewhat mentally impaired, he is able to function and express his wishes. He is vulnerable to be taken advantage of or manipulation, and is not a sophisticated individual. Objector represented that the proposed conservatee communicated best in Spanish, but that the conservator did not need to be Spanish-speaking.
Los Angeles Superior Court records show that the original filing in the trust was entitled, "request for case number with trust attached," filed October 8, 2007. There were no further filings in that case until April 25, 2008. We may take judicial notice of Los Angeles Superior Court records accessible to our clerks office, and some portions of those records are in the record in the related trust case. (Evid. Code, § 459.)
On February 22, 2008, Donnelly filed a cross-petition that was supported by Wife, seeking to establish a conservatorship because Conservatee was unable to manage his financial resources or resist fraud or undue influence, and there was animosity between his Wife, his birth family, and the trustee. A capacity declaration was filed by Dr. Daniel Gardner, his treating psychiatrist, stating that the proposed conservatee had dementia due to traumatic brain injury but was unaware of his deficits. He evaluated Conservatee as unable to attend court hearings, as of February 2008.
In response, the probate court appointed counsel for the Conservatee, and she filed a report dated March 11, 2008, for a proposed hearing of March 14. However, that hearing was continued until April 4, due in part to Objectors filing of a motion to have an expert witness appointed to determine Conservatees true preferences and wishes. (Evid. Code, § 730.) These hearings also involved discussion of the status of the trust holding the settlement proceeds, and Objectors status as trustee. The probate court investigator filed a confidential report, dated March 17, stating that he interviewed the Conservatee in Spanish, and found that he did not contest the establishment of the conservatorship and was able to attend the hearing. The investigator reported on the ongoing conflicts between Wife and the birth family of the Conservatee, and recommended that the conservatorship should be established.
In March 2008, Objector withdrew the petition she had filed, on the grounds that the psychologists opinion was that he was competent. However, Donnellys petition was still pending, and the treating psychiatrist for Conservatee had filed a declaration that he was not competent. At the hearing on April 4, the court denied Objectors request to have an expert witness appointed under Evidence Code section 730, because there was no justification for the expense and no current trial date set. Objector argued that it was essential that communications with the Conservatee should be in Spanish. Conservatee stayed out of the courtroom at this hearing. Objector was seeking to have the CAA removed, because of disagreements over the actual wishes of Conservatee, but that was denied. The court also made an award of attorney fees payable by the trust to the CAA, which has been separately appealed by Objector. (See fn. 4, post.)
It later came out that in early April, the attorney for Objector had contacted the proposed conservatee without obtaining permission from the CAA, although the CAA had requested that all contacts be made through her. Objectors attorney had translated conservatorship reports into Spanish and taken them to the proposed conservatee, without the knowledge of his attorney.
At a hearing on April 9, the court issued a protective order against further discovery at the request of the CAA, because Dr. Gardners deposition was being sought by Objector. The court ruled that since Conservatee had consented to the establishment of a conservatorship, his capacity was not in question. The matter was to be further reviewed in the trust matter on April 25.
On April 10, 2008, the court investigator filed another report, stating that he had visited the Conservatee and informed him about the filing of the petition, his right to attend the hearing, and his right to a jury trial, and determined that the proposed conservatee was able to attend the hearing, and did not wish to contest the establishment of the conservatorship. However, he was unclear about who he wanted as a conservator, and although he sometimes objected to Donnellys appointment, he also said it was okay. The investigator believed that the proposed conservatee was overwhelmed with misinformation by his siblings and his mother, and that the conservatorship should be established, with Donnelly appointed.
At the hearing on April 11, Objector stated that she was now appearing on behalf of the Conservatees brother (Gumaro Becerra), as well as herself (together Objector), and that the Conservatee wanted his brother to be appointed and to live with him. The probate examiner was questioned by the Court and responded that nothing had been filed showing that the brother was appearing in the case, and that since Objector had dismissed her petition, she appeared to lack standing in the case. Also, the CAA requested an order to show cause for sanctions on the grounds that the attorney for Objector had violated rules of professional conduct by contacting the proposed conservatee at the previous hearing without consulting the CAA, or obtaining her permission. The proposed conservatee was present on April 11, but stayed out in the hall. The CAA explained that he did not want to attend the hearing because he was frustrated and upset by being questioned by Objector and her attorney and other family members, and he no longer wanted to come to court, because he did not feel like the CAA was protecting him. The order to show cause re: sanctions was set for hearing at a later time (May 30).
Still at the April 11 hearing, Objector continued to oppose appointment of Donnelly as conservator, on the ground that the psychologist who Objector had consulted thought that Conservatee was competent. The probate court inquired about Objectors qualifications to serve, including whether she spoke English, and was told that she did. Throughout, the court continued to discuss with counsel how best to proceed on the various issues before it, which at that time also included a request by the CAA to appoint Donnelly as replacement trustee, as well as conservator. The court ruled that those trust issues were not properly before it, and set that matter for a separate hearing in the trust case on April 15. However, the court decided that adequate statutory admonishments had been given to the proposed conservatee, by the court investigator and the CAA, such that he should be and was excused from attending the hearing. The court appointed Donnelly as conservator with limited powers, with the matter to be further reviewed May 30.
The formal order appointing Donnelly as the conservator was issued April 25, containing provisions that the conservator could monitor and have authority to preclude harmful individuals from communicating with the Conservatee, under the procedure stated in the order. Objector appeals. (§ 1300.) (The issues regarding substitution of the trustee are also on appeal in the related case, D053018.)
These orders were appealable under section 1301: "With respect to guardianships, conservatorships, and other protective proceedings, the grant or refusal to grant the following orders is appealable: [¶] (a) Granting or revoking of letters of . . . conservatorship, except letters of . . . temporary conservatorship."
B. Augmentation
Each party submitted unopposed applications to augment the record and we issued orders accordingly. At the request of Objector and appellant, the record has been augmented to add copies of the probate court investigators confidential reports, dated March 17 and April 10, 2008. The investigator concurred with the views of Attorney Stern (described below), that Objector and her attorney did not have the best interests of the Conservatee in mind. Additionally, Objector supplies a conformed copy of the January 4, 2007 order compromising the Conservatees underlying personal injury action and approving the trust, along with copies of several pages in the trust document. Appellant further supplied copies of exhibits that were apparently attached to declarations or petitions in the workers compensation case, that set forth a 2007 dispute between Wife and Objector over whether Objector would be permitted to contact the Conservatee, according to the direction of his treating psychiatrist and workers compensation attorney (Objector was excluded from contact there in July 2007). Further, documents are provided to show that Wife bought a home in San Bernardino County in January 2007 and obtained consent from the Conservatee to put it in her name alone, although it is not clear from what source those documents were taken.
At the request of respondent Donnelly, the record has been augmented to add her objections to the original petition in which Objector sought to establish a conservatorship, and supporting documents, including a copy of the deposition taken of the treating psychiatrist, Dr. Gardner, in the workers compensation case. Next, the augmentation request includes the March 14, 2008 declaration filed by Attorney Stern, who represented Wife (as guardian ad litem of Conservatee) in the workers compensation matter, explaining that Wife fired the former attorneys (Dennis Dascanio and legal assistant Gerardo Del Campo) after they hired Objector as the trustee, pursuant to documents that Wife was asked to sign but said she did not understand. It was the opinion of Attorney Stern that those former attorneys, as well as Objector and Objectors attorney Paquette, did not have the Conservatees best interests in mind, and were trying to take control of his money, to the exclusion of Wife. In the court investigators report, he stated that he concurred with Attorney Sterns opinions.
Finally, Donnelly supplies the CAAs declaration in support of Donnellys petition to remove Objector as trustee at the April 25, 2008 trust proceeding. That declaration sets forth facts and allegations, among other things, about expenditures of trust funds and actions by the Objector that were characterized as wasting of assets and harmful conduct designed to persuade the Conservatee to divorce his Wife.
Pending appeal, we denied consolidation of this appeal with the trust matter, as well as two pending appeals of attorney fees and sanctions orders. We also denied an application by Objector to have counsel appointed for the Conservatee, on appeal, which Objector argued was necessary due to her own lack of confidence in the CAA. In this appeal, the respondent is Donnelly, and the issues are sufficiently presented in this set of briefs.
Another appeal in this case, by Objector of an attorney fees award in favor of the CAA, payable by the trust, is set for hearing on the May oral argument calendar. (D053574.) An additional appeal referenced in the briefs is by Objector, of an award to the court and the CAA of sanctions for conduct that was found to interfere with the CAAs representation of the Conservatee, and is not yet calendared. (D053519.)
DISCUSSION
I
INTRODUCTION
Objector mainly challenges the conservatorship orders as erroneous with respect to the trial courts rulings that the Conservatee was not required to attend the hearing personally, and that he had been adequately admonished of his due process rights. She essentially contends the record does not contain substantial evidence to support the orders, under a clear and convincing evidence standard. In the alternative, she contends that the CAA was biased and could not have adequately represented the interests of the Conservatee, and/or that Donnelly was also subject to a conflict of interest because of Wifes influence. (See In re Conservatorship of Ben C. (2007) 40 Cal.4th 529 [duty of effective representation of a conservatee].)
We first take note that Donnelly has raised questions about the standing of Objector or the brother (Gumaro Becerra) to appeal the conservatorship orders, since Objector had previously withdrawn her own petition to establish the conservatorship, and there were no filings from the brother. In response, Objector refers to the broad definitions of "interested person" under section 48, subdivision (a), to include, as relevant here, a person who has a claim against the trust estate which may be affected by the proceeding; or "(3) [a] fiduciary representing an interested person." Under section 48, subdivision (b), "[t]he meaning of `interested person as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding."
Under section 1829, the persons who may appear at the hearing to support or oppose the petition include not only the proposed conservatee and spouse, but also "(c) A relative of the proposed conservatee, (d) Any interested person or friend of the proposed conservatee."
In light of the important due process interests of the Conservatee that are implicated here, we think it is better and well justified to broadly construe the "interested person" definition above, in order to reach the merits of the appeal. (Code Civ. Proc., § 902.) This requires us to examine, on the merits, whether the relevant statutory protections were afforded in these proceedings.
II
STATUTORY STANDARDS
Conservatee was unable to express a preference for which person should be appointed as his conservator, so that the court was unable to proceed under section 1810, which allows a proposed conservatee to nominate the conservator. (See Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 400-401 [duty of court to select a preferred conservator who will serve best interests of conservatee].) The court in this case properly turned to section 1812, subdivision (a), under which the probate court has discretion to select a conservator of the person or estate, or both, within the guidelines provided in the statutory scheme to interpret "what appears to be for the best interests of the proposed conservatee." (Ibid.)
In making the selection of a conservator, statutory preferences are established by section 1812, subdivision (b), as follows: "(1) The spouse or domestic partner of the proposed conservatee or the person nominated by the spouse or domestic partner pursuant to Section 1811. [¶] . . . [¶] (5) Any other person or entity eligible for appointment as a conservator under this code or . . . the Welfare and Institutions Code." Here, there were allegations that the Conservatee wanted to divorce Wife and that he was not able to live at home. Nevertheless, she was still acting as his guardian ad litem in the workers compensation matter and was named as trustor in the trust, and the probate court was given a great deal of conflicting evidence about the wishes of the Conservatee. The main task facing the court was to consider and resolve all the conflicting evidence in the various reports, in the best interests of the proposed conservatee, and through appropriate procedures. (§ 1812, subd. (a).) Our task is to evaluate whether substantial evidence supports its conclusions. (Conservatorship of Ramirez, supra, 90 Cal.App.4th 390, 401.)
Under section 1825, subdivision (a), the proposed conservatee shall be produced at the hearing, except in the following cases: "[¶] (3) Where the court investigator has reported to the court that the proposed conservatee has expressly communicated that the proposed conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the establishment of the conservatorship, and (iii) does not object to the proposed conservator or prefer that another person act as conservator, and the court makes an order that the proposed conservatee need not attend the hearing."
Although Objector acknowledges this rule, she contends that an additional provision in section 1825 should undermine the finding by the trial court that the Conservatee was able but unwilling to attend, although he did not oppose the establishment of the conservatorship. Specifically, in subdivision (c) of that section, the Legislature provided that "[e]motional or psychological instability is not good cause for the absence of the proposed conservatee from the hearing unless, by reason of such instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the proposed conservatee." This raises the question of whether the trial court had an adequate basis to make such a "good cause" finding, whether express or implied.
The court investigator prepared March 17 and April 10 reports pursuant to the following procedures of section 1826, as excerpted to fit the circumstances of this case: "Regardless of whether the proposed conservatee attends the hearing, the court investigator shall do all of the following: [¶] (a) Conduct the following interviews: (1) The proposed conservatee personally. (2) All petitioners and all proposed conservators who are not petitioners. (3) The proposed conservatees spouse or registered domestic partner and relatives within the first degree. . . . [¶] . . . [¶] (b) Inform the proposed conservatee of the contents of the citation, of the nature, purpose, and effect of the proceeding, and of the right of the proposed conservatee to oppose the proceeding, to attend the hearing, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel. [¶] (c) Determine whether it appears that the proposed conservatee is unable to attend the hearing and, if able to attend, whether the proposed conservatee is willing to attend the hearing."
The court investigators reports complied with further statutory duties under section 1826, specified as follows: "(d) Review the allegations of the petition as to why the appointment of the conservator is required and, in making his or her determination, do the following: [¶] . . . [¶] (e) Determine whether the proposed conservatee wishes to contest the establishment of the conservatorship. [¶] (f) Determine whether the proposed conservatee objects to the proposed conservator or prefers another person to act as conservator. [¶] (g) Determine whether the proposed conservatee wishes to be represented by legal counsel and, if so, whether the proposed conservatee has retained legal counsel and, if not, the name of an attorney the proposed conservatee wishes to retain. [¶] . . . [¶] (k) Report to the court in writing, at least five days before the hearing, concerning all of the foregoing, including the proposed conservatees express communications concerning both of the following: (1) Representation by legal counsel. (2) Whether the proposed conservatee is not willing to attend the hearing, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefer that another person act as conservator."
Both Judge Brown and Judge Cline held numerous hearings in the probate court regarding this conservatorship application and the trust matter. In addition to the reports of the court investigator, the trial judges had two capacity declarations before it. The December 2007 report by psychologist Dr. Melendez had to be compared to the February 2008 one by the treating neuropsychiatrist, Dr. Gardner. The probate court also had several reports from the CAA for the Conservatee, outlining the various conflicts that had arisen with Objector and with the family members. These judges were made well aware of the related court proceedings in the previous personal injury lawsuit, the workers compensation proceedings, and the trust matter.
In light of this summary of the evidence and the statutory requirements at this stage of the conservatorship proceeding, we now turn to the claims of denial of due process.
III
ANALYSIS
Objector believes the probate court erred or abused its discretion to conclude that the Conservatee had received sufficient notice of his rights in the proceedings, and in concluding that the Conservatee could be excused from the proceedings. In Objectors view, she was the only appropriate person who could represent his rights, and her psychologist was more accurate than the treating neuropsychiatrist. She also challenges the adequacy of the CAAs representation. However, clear and convincing evidence in the record exists to support opposite conclusions, that her activities did not benefit the Conservatees interests but instead distressed and confused him, and that the CAA had an adequate grasp of the needs of the Conservatee. Even though a petition to create a trust proceeding had been filed in Los Angeles, as originally alleged in Objectors conservatorship petition, that matter was not active between its October 2007 filing and the April 25, 2008 report that Objector filed there. The trial court could legitimately draw a conclusion that the overall conduct of Objector, as the trustee, as disclosed in the conservatorship proceedings, was not in accordance with and did not accurately promote the wishes and interests of the Conservatee.
Moreover, even though there was evidence that Conservatee had contemplated getting a divorce at various times, there was also evidence that Wife was taking appropriate actions to protect him. Donnelly was a private professional fiduciary who had qualifications to evaluate and carry out, in a neutral manner, actions that would promote the interests of Conservatee, even though she was supported by the Wife.
We may not consider the merits of the other appeals in this case, by Objector of an attorney fees award in favor of the CAA, payable by the trust, and of a sanctions ruling. (See fn. 4, ante.) The Objector is arguing that the trial court should not have sanctioned her for conduct that was found to interfere with the CAAs representation of the Conservatee, and that those circumstances somehow show that the CAA was not rendering proper representation to the Conservatee in this case (citing People v. Marsden (1970) 2 Cal.3d 118). Objector relies on a factually distinguishable case, In re Conservatorship of Estate of David L. (2008) 164 Cal.App.4th 701, 710, as establishing that in an LPS conservatorship under the Welfare and Institutions Code, a proposed conservatee has a statutory and due process right to effective assistance of counsel. No such issues are before us, and neither are the trust matters.
Instead, we focus in this case on the record leading to the conservatorship orders on appeal. Our evaluation of the documents and transcripts leads us to conclude that the probate court acted properly in allowing the Conservatee to absent himself from the April 11 and related hearings, because the court understood that he had been fully informed of his rights, and his personal circumstances were such that he should not be required to be present. Nothing that Objector and/or the brother have shown, such as their disagreements with the CAA, would have required or even supported a different exercise of discretion. (§§ 1812, subd. (a); 1825.) Nor can we conclude these orders were somehow in excess of the authority of the probate court, as Objector continues to argue, nor that due process was lacking in the procedures followed. Instead, the courts findings and rulings, both expressly and impliedly, represent a reasoned weighing of the evidence and all the different interests asserted, and the conservatorship orders are well grounded in law and fact.
DISPOSITION
The orders are affirmed. The ordinary costs are awarded to respondent.
WE CONCUR:
NARES, J.
AARON, J.