Opinion
Docket No. 7293.
July 26, 1963.
PROCEEDING in prohibition to restrain the Superior Court of San Diego County from trying, without a jury, the issues raised by a petition for the appointment of a conservator and written objections thereto. Peremptory writ granted.
David H.R. Pain for Petitioner.
No appearance for Respondent.
Orfield, Thompson Bunker and R.G. Sullivan for Real Party in Interest.
This is an application for a writ of prohibition to restrain the superior court from trying, without a jury, the issues raised by a petition for the appointment of a conservator and written objections thereto. The applicant herein is the subject of the conservatorship proceedings thus initiated; filed the written objections in question; denied that he is incompetent or that a conservator should be appointed for his estate; filed a timely demand for a jury trial of the issues thus raised; and posted the necessary fees therefore. His request for a jury trial was denied. The instant proceedings followed.
[1] The sole issue for determination is whether the subject of a conservatorship proceeding is entitled to a trial by jury of the issues raised by the petition for the appointment of a conservator and his written objections filed in opposition thereto.
Proceedings to effect a conservatorship are governed by the provisions of the Probate Code which, direct: ". . . the superior court, if satisfied by sufficient evidence of the need therefor," to appoint a conservator of the person or property of an adult person, under specifically designated circumstances; authorize the filing of a petition requesting such appointment; require a hearing thereon after notice; and permit the proposed conservatee, among others, to "appear and oppose the petition." (Prob. Code, §§ 1751, 1754.) The foregoing provisions, both in content and phraseology; are similar to those governing the appointment of a guardian. (Prob. Code, §§ 1460, 1461.) The two proceedings contemplate the accomplishment of substantially identical purposes, as evidenced by the provisions of section 1703 of the Probate Code that: "A petitioner may elect to apply either for letters of conservatorship or letters of guardianship, or he may apply for such letters in the alternative" and, "No appointment of both a conservator and a guardian shall be made for the same person or estate." The issues raised by objections to a petition for the appointment of a guardian, upon demand, are subject to trial by jury. ( Budde v. Superior Court, 97 Cal.App.2d 615 [ 218 P.2d 103].) The reasons for this rule are equally applicable to the trial of similar issues in a conservatorship proceeding. Additionally, section 1755 of the Probate Code expressly provides that the issues raised by a petition to terminate a conservatorship and objections thereto shall be heard and determined by the court "without a jury"; thus, impliedly recognizes the right to a jury trial thereof, although not specifically conferred, in the absence of a provision directing the contrary; and supports the conclusion that a jury trial of the issues raised by a petition for appointment of a conservator and objections thereto likewise is a matter of right, although not specifically conferred by the statute. We conclude that the petitioner herein is entitled to a trial by jury of the issues raised by his opposition to the petition seeking the appointment of a conservator of his estate.
[2] Prohibition is a proper remedy to protect the rights of petitioner in the premises. ( Tide Water Assoc. Oil Co. v. Superior Court, 43 Cal.2d 815, 820-821 [ 279 P.2d 35]; Ford v. Superior Court, 176 Cal.App.2d 754, 759 [ 1 Cal.Rptr. 559]; Budde v. Superior Court, supra, 97 Cal.App.2d 615, 622; Knight v. Superior Court, 95 Cal.App.2d 838, 839 [ 214 P.2d 21].)
Let a peremptory writ of prohibition issue as prayed for.
Griffin, P.J., and Brown (Gerald), J., concurred.