Opinion
B153395. B156690.
7-15-2003
Conservatorship of the Person and Estate of WILLIAM P. ROY P., Petitioner and Appellant, v. SUSAN KAY WEISS, Objector and Respondent; WILLIAM P., Appellant.
Law Firm of Roy P. and Roy P., for Petitioner and Appellant and for Appellant. Susan K. Weiss, in pro. per., for Objector and Respondent.
In these consolidated appeals, appellant Roy P. (Roy), the former conservator of his brother, William (William), appeals superior court orders entered on August 17, 2001, September 19, 2001, and December 28, 2001. Roy also moves to disqualify appointed counsel, Susan Kay Weiss, from representing William in this appeal.
We affirm. We find Roys appeal of the August 17, 2001 order, which required him to file a final accounting in the conservatorship, was rendered moot by his filing and the superior courts approval of the final accounting on November 16, 2001. We further find no abuse of discretion in the superior courts order of September 19, 2001, denying Roys motion to disqualify respondent Susan Weiss as counsel for the conservatee. There was also no abuse of discretion in the superior courts finding that as attorney of record for the former conservatee, Weiss is entitled to attorney fees, nor did the court err in requiring Roy to post a bond in the sum of $ 10,000 as a condition of the automatic stay pending appeal. In addition, because Weiss is not representing William in this appeal, but rather is appearing as a real party in interest to assert her own interest in the attorney fee award, we deny Roys motion to disqualify Weiss.
These consolidated appeals represent just two of the six appeals and writs Roy has filed in this court over a one-year period in connection with his brothers conservatorship. Although Roy purports to raise numerous federal and state constitutional issues in all of his appeals, the controversy in the case before us boils down to little more than a dispute over whether the superior court had the authority to award any attorney fees to Weiss, a court-appointed attorney who represented the conservatee until the superior courts approval of the conservators final accounting. Contrary to Roys assertions, the determination of this issue does not implicate Williams due process or other constitutional rights, nor did the courts refusal to disqualify Weiss amount to a de facto imposition of a conservatorship after it had already terminated.
Roy began his appellate odyssey with a writ petition filed in case No. B144815 on October 6, 2000. The writ petition was summarily denied. Before the end of October 2000, Roy filed four more notices of appeal in quick succession, which became case No. B145517. Roy never filed an opening brief, however, and the case was dismissed on July 18, 2001 pursuant to California Rule of Court, rule 17(a). On January 28, 2002 Roy filed a petition for writ of prohibition and/or mandate to stay or vacate the superior courts order of December 28, 2001 requiring Roy to post a bond pending the appeal in case No. B156690. The petition was denied on January 29, 2002, and the Supreme Court denied review on February 20, 2002. Finally, in an appeal that has not yet been calendared for hearing, case No. B155023, Roy challenges the superior courts order of November 16, 2001 approving the conservators final account and awarding Weiss attorney fees of $ 7,500, payable by the former conservator on behalf of the former conservatee.
BACKGROUND
Roy was appointed conservator over William on April 15, 1991 under the Lanterman-Petris-Short Act (LPS), Welfare and Institutions Code section 5350 et seq. The conservatorship was imposed pursuant to the courts finding that the conservatee, William, was gravely disabled and unable to provide for his basic needs of food, clothing, and shelter as a result of a severe mental disorder.
On October 9, 2001 we granted Roys request for judicial notice of appeal No. B145517. We further take judicial notice pursuant to Evidence Code section 452 of the reporters transcript of the proceedings before the court on November 16, 2001, which is part of the record in appeal No. B155023.
According to Williams sister, Marlene, William was diagnosed in his early 20s with chronic paranoid schizophrenia by several licensed psychiatrists. When unsupervised, William is likely to stop taking the medication necessary to control his schizophrenia, and, untreated, William lapses into psychosis and his hallucinations and delusions take control of his life. Even when he is on his medications, William can still suffer psychotic episodes because some medications lose their effectiveness over time.
In 1990 William was imprisoned in Mexico after driving there in a psychotic state. According to Marlene, his life was in danger before his release. The same year, William allegedly attempted to run down members of his church congregation with an automobile.
In 1991, while in a psychotic state, William attempted to break the windows of his own church building. He was arrested but not treated because, according to police, he denied having any illness. Upon his release from jail, he walked onto a train track believing he was impervious to being hit by a train. He was struck by a train, and suffered grave and permanent injuries, including brain damage and the loss of the lower part of his right leg. Marlene stated she believes that Williams psychosis worsened as a result of the injuries he suffered in the train accident.
During the conservatorship, Roy represented his brother in several civil lawsuits, and was successful in securing a $ 2.5 million judgment from the County of Los Angeles. As reflected in the five accountings filed by the conservator beginning with a transaction report commencing on July 3, 1996, Roy paid himself $ 9,000 each month in attorney fees, reimbursed himself for all costs, and paid expert fees and sanctions relating to those lawsuits, in addition to a one-time payment to himself for attorney fees of $ 126,873 on April 25, 1997.
Beginning in 1991 Antonio Govea represented William under appointment pursuant to Welfare and Institutions Code section 5365. Govea withdrew as counsel in 2000, and Rudolph Pearl was appointed to represent the conservatee. Within three weeks of Pearls appointment Roy moved to disqualify him as counsel for the conservatee. On September 20, 2000 the superior court granted the motion to disqualify Pearl, and appointed Weiss as counsel for William. But Roy was not happy with Weisss appointment either, and immediately sought reconsideration of the courts order appointing her. The court denied reconsideration of its order appointing Weiss as counsel for the conservatee on September 26, 2000. The court further found that a peremptory challenge Roy filed against Judge Shabo was not timely and Roy lacked standing to challenge the judge. Thereafter, over Weisss objections, the court approved the conservators fourth account and awarded attorney fees to Govea in the amount of $ 6,037.50, to be paid by the conservator from the conservatees estate.
Although the conservatorship had been renewed in accordance with Roys petition on March 29, 2000, Roy filed an ex parte motion to terminate the conservatorship on September 6, 2000. Roys motion to terminate the conservatorship was eventually denied on October 6, 2000.
The conservatorship terminated by operation of law on April 14, 2001 when Roy did not petition the court to renew the conservatorship. But instead of preparing and filing a final accounting as ordered by the court, Roy filed a notice of waiver of final accounting by William on July 13, 2001, which the court rejected on August 17, 2001. The court again ordered the conservator to file a final accounting, and Roy and William appealed.
On October 19, 2000 Roy filed the first of four notices of appeal in appeal No. B145517, in which he appealed the October 6, 2000 order denying his motion to terminate the conservatorship, as well as the courts denial of his demand for jury trial, and orders appointing Weiss as the permanent counsel for the conservatee and requiring the conservator to provide the court with a breakdown of litigation expenses attributable to the conservatees estate along with all receipts and cancelled checks in the conservators possession. On October 31, 2000 Roy filed three more notices of appeal in appeal No. B145517, by which he challenged the courts September 13, 2000 order for payment of attorney fees to Govea; the courts October 10, 2000 order approving the conservators fourth account and awarding attorney fees to Govea; and the courts September 26, 2000 orders denying the peremptory challenge to Judge Shabo, denying reconsideration of the order appointing Weiss, and requiring the conservator to provide Weiss with copies of the last accounting and transcript and a brief written statement concerning other litigation in which the conservatee is involved.
There was never a finding that any of the grounds for imposition of the conservatorship in 1991 had abated or diminished.
On August 28, 2001 Roy and William filed a motion to disqualify Weiss as the attorney for the conservatee. Roy contended that Weiss should be relieved as counsel because the conservatorship had already terminated, and William did not want Weiss as his attorney. Furthermore, Roy asserted that his brother had filed a lawsuit against Weiss for legal malpractice and breach of fiduciary duty in connection with her representation of William, thus creating an actual conflict of interest between Weiss and her client. Although Roy identified the malpractice action by a Los Angeles County Superior Court case number, the complaint was not included with the motion to disqualify, and it apparently had never been served on Weiss.
Weiss did not file written opposition to the motion, and at the hearing on the motion she requested to be relieved as counsel, citing the probable existence of a lawsuit against her by her client. On September 19, 2001 the court denied the motion to disqualify Weiss as the attorney of record for the conservatee, finding that the motion had been made in bad faith for the purpose of delay. On the same day, Roy filed a notice of appeal from the courts orders of August 17 and September 19, 2001 for himself and William.
On October 11, 2001 Roy filed a final accounting and report of former conservator. Weiss filed objections to the final accounting and submitted an amended declaration in support of her request for attorney fees for 30 hours of legal services from September 22, 2000 to October 13, 2001. In her objections to the final accounting, Weiss observed that although the court had ordered payment of attorney fees in the amount of $ 6,037.50 to Govea on September 13, 2000, the final accounting contained no indication that Govea had ever been paid. On November 16, 2001 the court approved the final accounting over Weisss objections, and granted Weisss request for attorney fees in the amount of $ 7,500. Roy challenged the courts November 16, 2001 order in appeal No. B155023, filed December 3, 2001. That appeal is still pending in this court.
On December 7, 2001 Weiss filed an ex parte application for an order requiring Roy and William to post a bond or undertaking pursuant to Code of Civil Procedure section 917.9. On December 28, 2001, finding that "Weiss remains attorney of record for former conservatee and is entitled to attorney fees," the court ordered "Roy [P.] as conservator to post bond in the sum of $ 10,000.00 within 30 days as a condition of the automatic stay pending the appeal. . . . Cost of the bond is to be paid from the assets of the conservatee." Roy appealed the courts December 28, 2001 order for himself and William in appeal No. B156690, which was consolidated with appeal No. B153395 by this court on April 30, 2003. The bond has never been posted.
On January 2, 2002 Roy filed a motion in this court to disqualify Weiss from representing William on appeal. We deferred a ruling on the motion until the matter was calendared for hearing.
DISCUSSION
A. The appeal of the August 17, 2001 order is moot.
Roy challenges the August 17, 2001 order requiring him to file a final accounting in the conservatorship on the ground that the superior court improperly disregarded Williams waiver of his right to a final accounting. But Roy concedes that the final accounting has already been filed and was approved by the superior court on November 16, 2001. Any issue relating to the final accounting is thus moot, and Roy fails to present any basis for examining the propriety of the courts order in spite of this fact.
"A case is moot when the decision of the reviewing court can have no practical impact or provide the parties effectual relief. [Citation.] (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) When no effective relief can be granted, an appeal is moot and will be dismissed. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316, citing Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal. Rptr. 21, 432 P.2d 717.)" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.)
In this case, after filing a notice of appeal of the courts order requiring a final accounting, Roy eventually complied with the courts order and the final accounting was approved. Accordingly, no effective relief remains to be granted, and the appeal of the superior courts August 17, 2001 order must be dismissed as moot.
B. There is no evidence that the superior court was biased against William.
Roy contends that the lower courts rulings in this case must be reversed because the record reveals facts which could cause a reasonable person to entertain doubt as to Judge Shabos impartiality. We disagree. We find the record contains no evidence of bias on the part of Judge Shabo against William, and Roys contention is without merit.
In support of his argument, Roy cites the superior courts refusal to discharge Weiss as counsel for William before the final accounting was filed, and the courts approval of Weisss attorney fees at a rate of $ 100 more per hour than the fees ordered to be paid to previously appointed counsel. But neither of the facts cited by Roy even remotely suggests bias on the part of Judge Shabo in ruling on matters before him. To the contrary, the record reveals that Judge Shabo took particular care to safeguard Williams interests while matters concerning the conservatorship were pending before him.
The superior court has authority to appoint private legal counsel for a conservatee pursuant to Probate Code section 1470. Section 1470 further authorizes the superior court, in its discretion, to fix a reasonable sum for the compensation and expenses of appointed counsel to be paid from the estate of the person for whom legal counsel is appointed.
All statutory references are to the Probate Code unless otherwise indicated.
Probate Code section 1470 provides:
"(a) The court may appoint private legal counsel for a ward, a proposed ward, 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 persons interests.
"(b) If a person is furnished legal counsel under this section, the court shall, upon conclusion of the matter, fix a reasonable sum for compensation and expenses of counsel. The sum may, in the discretion of the court, include compensation for services rendered, and expenses incurred, before the date of the order appointing counsel.
"(c) The court shall order the sum fixed under subdivision (b) to be paid:
"(1) If the person for whom legal counsel is appointed is an adult, from the estate of that person."
In the instant case, the courts refusal to grant Roys motion to disqualify Weiss was based not on bias against William, but on its finding that the motion was brought in bad faith to delay or altogether avoid filing the final accounting in the conservatorship. Moreover, Roy presented no evidence to establish that Weisss hourly rate was unreasonable compared to the compensation paid to other attorneys practicing in the Los Angeles Superior Court and who share the same qualifications and experience as she. The mere fact that one attorneys hourly rate is greater than anothers does not establish that the attorney fees requested are per se unreasonable.
In short, Roys allegations of bias on the part of Judge Shabo are completely unsupported by the record, and may not form the basis for reversal of any of the lower courts rulings.
C. The superior court did not abuse its discretion in denying the motion to disqualify Weiss prior to the filing and approval of the final accounting.
Roy contends that the superior courts denial of the motion to disqualify Weiss as counsel for William five months after the termination of the conservatorship amounted to a de facto imposition of a new conservatorship on William and constituted a violation of Williams fundamental right to choose his own counsel. Roy further contends that because the issue involves application of federal and state constitutional and statutory law to undisputed facts, our review of the courts September 19, 2001 order must be de novo. Roys hyperbole aside, we recognize the discretion vested in the superior court in ruling on a motion to disqualify appointed counsel, and we find no abuse of that discretion in the courts denial of the motion in this case.
"The denial of an order to disqualify counsel is appealable. (Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1838.) We review the order for an abuse of discretion. (Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 8-9.) The order is subject to reversal only when there is no reasonable basis for the trial courts decision. (Id., at p. 9.)" (Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co.
(1998) 68 Cal.App.4th 856, 860.)
Although there was some evidence of an actual conflict of interest posed by the purported existence of a lawsuit pending against Weiss by her client, Weiss had never been served with the complaint in the action, nor was a copy of the complaint attached to the motion to disqualify. In addition, Roy had sought to disqualify the two prior attorneys appointed as counsel for William, and he had vigorously opposed Weisss appointment from the outset. By the time he filed the motion to disqualify Weiss, Roy had already delayed by four months the filing of the final accounting as ordered by the court pursuant to section 2620.2, conduct which the court characterized as deliberately evading the process under the LPS Act.
Given Roys antagonism toward the previous attorneys appointed as counsel for the conservatee and his resistance to fulfilling his obligations under the LPS Act, the court was justifiably suspicious of the existence of any actual conflict of interest between Weiss and her client. Accordingly, there was no abuse of discretion in the courts denial of the motion to disqualify Weiss, based on its determination that the motion was filed in bad faith for purposes of delay.
D. The superior court did not err in finding Weiss was entitled to attorney fees.
In this appeal, Roy does not challenge the amount of attorney fees awarded to Weiss, but only the superior courts finding that Weiss is entitled to attorney fees and its order that Roy post a bond in order to stay the order for attorney fees pending appeal, payable from the assets of the estate. Roy contends that because the court failed to order payment of Weisss attorney fees prior to the termination of the conservatorship, the court had no authority to order that Weisss attorney fees be paid from Williams estate. We disagree.
Roys challenge to the amount of attorney fees ordered to be paid to Weiss from the assets of the estate-$ 7,500-is the subject of appeal No. B155023, which is still pending in this court.
Roy asserts that the courts power to determine and order Weisss attorney fees be paid from the estate abruptly ended with the termination of the conservatorship. But as set forth above, section 1470 authorizes the superior court to appoint private legal counsel for a conservatee and to order attorney fees to be paid from the conservatees estate. And section 2630 provides for the continuing jurisdiction of the court upon termination of the relationship of the conservator and conservatee for any reason "for the purpose of settling the accounts of the guardian or conservator or for any other purpose incident to the enforcement of the judgments and orders of the court . . . ." Moreover, during the December 28, 2001 hearing on Weisss motion for a bond pending appeal, Roy admitted that Weiss had originally submitted her request for attorney fees in November 2000, prior to the termination of the conservatorship, and the court had simply failed to rule on the request.
Accordingly, the court retained jurisdiction beyond the termination of the conservatorship to resolve matters still pending from the conservatorship, such as ordering reasonable attorney fees to be paid to the court-appointed attorney. Since Weiss was appointed by the court to act as counsel for William while he was still under conservatorship, she was entitled to reasonable compensation for legal services she rendered pursuant to that appointment.
E. There was no error in the
courts order requiring Roy to post an undertaking pending appeal, payable from the assets of Williams estate.
Roy contends that the trial court erred in requiring him to post a bond in order to stay the November 16, 2001 order for attorney fees pending appeal. He argues that an undertaking is not required because pursuant to section 1310, subdivision (d) and its reference to Code of Civil Procedure section 917.9, the court had no authority to order the posting of a bond. We disagree.
Probate Code section 1310, subdivision (a) provides that an appeal stays the operation and effect of a judgment or order, except as provided in subdivisions (b), (c), (d), and (e). As relevant here, subdivision (e) provides that an appeal does not stay the operation and effect of an order directing payment of money unless a bond is posted as provided in section 917.1 of the Code of Civil Procedure. Section 917.1, subdivision (a) provides as follows: "Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: [P] (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action." Subdivisions (b), (c) and (d) of section 917.1 set forth the requirements of the undertaking, the rights of a surety who pays the judgment, and a provision for the inclusion of costs in the amount of the judgment or order.
Subdivision (b) provides that notwithstanding the appeal, the court continues to have the authority to direct the exercise of the powers of the fiduciary, etc., in order to prevent injury or loss to a person or property. Subdivision (c) provides that Code of Civil Procedure section 917.7 applies to guardianship proceedings. And subdivision (d) provides that an appeal does not stay the operation or effect of a judgment or order if the court requires an undertaking, as provided in Code of Civil Procedure section 917.9, and the undertaking is not given.
Further statutory references shall be to the Code of Civil Procedure.
Roys reliance on Probate Code section 1310, subdivision (d) is misplaced. While an undertaking may not be required here under subdivision (d), an undertaking is required under subdivision (e)(1). Accordingly, we find no error here.
F. Williams motion to disqualify Weiss is denied.
William has moved to disqualify Weiss from representing William in this appeal on the grounds that the conservatorship has been terminated, and he has been deprived of his federal and state rights to conflict-free counsel and to terminate his relationship with his lawyer. But Weiss is not representing William in this or any other appeal. Rather, her appearance in this appeal is solely as a real party in interest to assert her own interest in the attorney fee award, and she has declared she "has no intention of contesting any other issues on appeal . . . ."
Weiss clearly has standing to assert her own interest in the attorney fees awarded to her as counsel for William under the conservatorship. (See Breckler v. Thaler (1978) 87 Cal. App. 3d 189, 193-194, 151 Cal. Rptr. 50; In re Lagersens Estate (1962) 210 Cal. App. 2d 788, 791-792, 26 Cal. Rptr. 783.) Accordingly, Williams motion to disqualify Weiss is denied.
DISPOSITION
The orders of the superior court, entered August 17, 2001, September 19, 2001, and December 28, 2001, are affirmed. Appellant Roy P.s motion to disqualify Weiss is denied. Appellant Roy P. is ordered to bear respondent Susan Weisss costs of appeal.
We concur: BOREN, P.J., and ASHMANN-GERST, J.