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In re Conservatorship of the Person Estate of Becerra

July 28, 2009

CONSERVATORSHIP OF THE PERSON AND ESTATE OF BIBIANA BECERRA.
VIDA F. NEGRETE ET AL., APPELLANTS,
v.
BIBIANO BECERRA, RESPONDENT;
LINDA PAQUETTE, OBJECTOR AND APPELLANT.



APPEAL from orders of the Superior Court of San Diego County, David G. Brown, Judge. Reversed with directions. (Super. Ct. No. 37- 2007-00100340-PR- CP-NC).

The opinion of the court was delivered by: Huffman, Acting P. J.

CERTIFIED FOR PUBLICATION

In this conservatorship case, Objector and Appellant Linda Paquette (Appellant), an attorney who was representing a party in the action, appeals an order by the probate court ordering her to pay monetary sanctions to the court and attorney fees to the court-appointed attorney for the proposed conservatee, Bibiano Becerra (Conservatee). (Prob. Code, §§ 1471, 1800 et seq.; Code Civ. Proc., §§ 177.5; 575.2.)*fn1 The court-appointed attorney, Parisa P. Farokhi (the CAA), sought these sanctions and attorney fees as a result of Appellant's alleged violations of California Rules of Professional Conduct, rule 2-100(A), through her conduct of continuing to contact the Conservatee after the CAA had already been appointed to represent him and had requested other counsel to communicate with him only through her.*fn2 After issuing an order to show cause, the probate court imposed against Appellant $1,000 sanctions in favor of the court and $2,587.50 attorney fees payable to the CAA.

Appellant argues the awards of monetary sanctions and fees are unsupported by statutory authority or the record, in the form of a proven violation of an existing lawful court order, as opposed to a different finding by the probate court of her violation of a rule of professional conduct that could lead to attorney disciplinary proceedings. (§§ 177.5, 575.2; Bus. & Prof. Code, §§ 6076 et seq.) Under all the relevant circumstances, we agree that the probate court failed to follow proper procedures in giving notice of the proposed sanctions and in awarding them for the express or implied reasons disclosed by the record. The orders are legally unsupportable and must be reversed with directions.

FACTUAL AND PROCEDURAL BACKGROUND

The background facts for this continuing proceeding are well known to the court and parties, and since the merits of the conservatorship issues are not before us, only a brief summary need be given here. We previously issued an unpublished opinion in Conservatorship of Becerra (Apr. 9, 2009, D052972), the "conservatorship case," describing his brain injury sustained in an industrial accident. We also concurrently resolved an appeal in a related case involving the removal of Appellant as trustee of a trust holding his personal injury settlement proceeds (Donnelly v. Negrete (Apr. 8, 2009, D053018) [nonpub. opn.]). In another nonpublished opinion, Conservatorship of Becerra (June 17, 2009, D053574), we upheld an attorney fees award to the CAA, payable from the trust. All these are referred to as "our previous opinions."*fn3

The original petition for conservatorship was filed in November 2007 by Vida F. Negrete, R.N., Ph.D. (a professional fiduciary and the client of Appellant; referred to here as Negrete). By court appointment, the CAA began to appear for Conservatee in February 2008. Eventually, in March 2008, Negrete withdrew her petition, but after contested proceedings by a different petitioner (who was supported by different family members), Gerry Donnelly was appointed as conservator. The court then appointed Donnelly to replace Negrete as trustee of Conservatee's assets. While those hearings were still going on, the events giving rise to these sanctions orders took place.

On April 4, 2008, Appellant, acting for Negrete, attended a hearing on her motion to have an expert witness appointed to determine Conservatee's true preferences and wishes. (Evid. Code, § 730.) At that time, the other conservatorship petition was still pending, and the CAA had filed a report dated March 11, 2008, for a proposed hearing of March 14, which had been continued until April 4. There were conflicting expert opinions on the extent to which a conservatorship should be established, based on the mental state of Conservatee, who was consenting to the procedure in general, but remained unclear about who he wanted to act as his conservator. At the April 4 hearing, the court denied Appellant's request on behalf of Negrete to have the expert witness appointed, ruling there was no justification for the expense and no current contested trial set. (Evid. Code, § 730.) Another conservatorship hearing was scheduled for April 11.

On April 8, the CAA filed a supplemental report for the April 11 hearing, stating that at the April 4 hearing, Appellant had contacted Conservatee without obtaining permission from his attorney, the CAA, although the CAA had requested that all contacts with him be made through her. Appellant had obtained translations into Spanish of the conservatorship reports and showed them to Conservatee, since she disagreed with them, and she did so without the consent or knowledge of the CAA. The CAA contended in her supplemental report that this conduct interfered with her representation of Conservatee, and therefore she requested an order to show cause for sanctions or a contempt ruling, on the grounds that Appellant had violated rules of professional conduct in that manner. (Rule 2-100(A).)

At the April 11 hearing, the CAA explained to the probate court that Conservatee was present at the courthouse but was staying out in the hall and did not want to attend the hearing, because he was frustrated and upset by being questioned by Appellant and other family members, so that he did not feel the CAA was protecting him.

Based on the CAA's representations at the April 11 hearing about Appellant's contacts with Conservatee, the court (Judge Brown) announced that an order to show cause regarding sanctions against Appellant would be heard May 30, and that opposition would be allowed. On April 15, the court clerk served two written notices of the order to show cause regarding sanctions, citing sections 177.5 and/or 575.2. Both orders were dated April 14 and signed by Judge Cline. One order was printed on a court form and stated that the hearing would be held in Department N- 04 (Judge Cline's dept.), but it did not fill in the blanks regarding the basis for the sanctions. The typed order gave similarly general notice, except that the matter would be heard in Department N-03 (Judge Brown's dept.) regarding the issuance of sanctions. Other hearings on the conservatorship issues were set for April 25 and May 30, as shown by augmented material in the record.

Meanwhile, beginning May 6, 2008, Appellant was making efforts to disqualify Judge Brown, pursuant to section 170.1, contending in her statement that his impartiality might reasonably be questioned. On May 12, Judge Brown struck the statement of disqualification for lack of service in accordance with the statutory requirements or for an inadequate showing of legal grounds for disqualification. (Most of the record in this case is supplied as exhibits to Appellant's statements of disqualification.)

On May 19, Appellant filed her opposition to the sanctions request, arguing that the notices of hearing were defective because they were blank with regard to the reasons sanctions were being considered. She also contended that no specific orders had been violated, and her acts of advocacy as counsel were not properly the subjects of sanctions under section 177.5. In response, the CAA filed objections to the opposition, relying on section 128.5 and claiming that (1) Appellant was making it difficult for her to represent Conservatee, (2) Appellant must have known the reasons for her sanctions request, and (3) Appellant had harassed her by filing and serving a State Bar complaint against her, in retaliation. The CAA submitted a fees request for 13 hours of time at $225 per hour. (See also § 128.7.)

On May 30, the sanctions matters came on for hearing at 8:30 a.m. in Department N-03 before Judge Brown. The CAA reported that she had seen Appellant in the hallway, and the bailiff offered to go look for her. Judge Brown responded that he saw no reason to track her down, because she had been given notice as to the time and department regarding the order to show cause on sanctions. The CAA then argued that Appellant had willfully violated rules of professional conduct, had failed to appear at the hearing, and was unjustifiably claiming in her opposition papers that she did not know why the order to show cause had been issued. At 8:40 ...


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