IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Trinity)
September 7, 2011
CONSERVATORSHIP OF THE ESTATE OF CARMEN JEANETTE JONES. TERRY HARRIS, AS CONSERVATOR, ETC., ET AL., PETITIONERS AND RESPONDENTS,
RAYMOND P. HARRIS, OBJECTOR AND APPELLANT. CONSERVATORSHIP OF THE PERSON AND ESTATE OF CARMEN J. JONES. TERRY HARRIS, AS CONSERVATOR, ETC., ET AL., PETITIONERS AND RESPONDENTS,
RAYMOND P. HARRIS, OBJECTOR AND APPELLANT.
(Super. Ct. No. 08PR014), (Super. Ct. No. 07PR0017)
The opinion of the court was delivered by: Hull , Acting P. J.
Conservatorship of Jones
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
We consolidated these two appeals involving trust and conservatorship proceedings under the Probate Code. (Undesignated statutory references are to the Probate Code.)
In appeal No. C062865 (the trust case), appellant Raymond P. Harris, acting in propria persona, appeals from a judgment after bench trial, in which the probate court (1) removed him as trustee of his mother's trust, the Carmen Jeanette Jones Revocable Trust, due to his self-dealing with trust property (§ 15642), (2) rejected his claim of right to the property, and (3) ordered him to pay attorney fees to respondents Terry Harris and Joyce Harris (conservators), who had been appointed as conservators of Carmen Harris's person and estate. (Because several parties share the Harris surname, for clarity, we will use only first names.) As we will explain, appellant's arguments fail to establish grounds to reverse the judgment. We affirm the judgment in appeal No. C062865.
In the second appeal, No. C064672 (the conservatorship case), Raymond, acting in propria persona, appeals from the probate court's order approving the conservators' final accounting and approving legal fees and reimbursement of the conservators' costs. He also challenges earlier probate court orders appointing Terry and Joyce as temporary conservators and approving their first accounting. We will explain (1) the order appointing temporary conservators is not appealable; (2) the appeal is untimely as to the first accounting, and (3) the appeal fails to show grounds for reversal of the order approving the final accounting and appeal fees and costs. We affirm the trial court's order.
We will discuss the facts and proceedings relating to each appeal in the Discussion portion of the opinion which follows.
The Procedural Significance of Terry's Death During the Proceedings
Before addressing Raymond's appellate contentions, we consider the effect of the death of Terry, who died on August 26, 2009, after the probate court issued orders in the trust case (April and July 2009) but before entry of judgment (October 5, 2009), and before the court ruled in the conservatorship case (March 16, 2010). Generally, a representative of the deceased must be substituted in as a party. (Code Civ. Proc., §§ 377.41, 377.30-377.43; 1A Cal.Jur.3d (2006) Actions, §§ 283-285, pp. 372-376.) However, a judgment entered in violation of this rule is not void, but merely voidable upon a showing of prejudice. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957-960; 1A Cal.Jur.3d, supra, at pp. 372, 376.)
Here, Raymond neither raises the issue nor shows prejudice from the absence of a substitution for Terry. Terry's involvement in the litigation was in his capacity as conservator and trustee. In December 2009, Joyce asked to be appointed successor trustee due to his death, and the probate court granted the request on March 16, 2010. The probate court and the appellate briefs continued to refer to both Terry and Joyce as conservators. We see no prejudice and will refer to conservators in the plural.
Appeal No. C062865 (the Trust Case)
A. Facts and Proceedings
In 1998, Carmen Jones created the Trust. She was its beneficiary during her lifetime. She conveyed real property to the Trust, and named Raymond as trustee and (after her death) as the Trust's beneficiary.
In 2006, Raymond, as trustee, conveyed the real property by grant deed to himself as an individual.
In 2007, a court investigator recommended establishing a conservatorship for Carmen due to cognitive impairment. The probate court appointed Terry (Raymond's brother) and Joyce (Terry's wife) as conservators of the mother's person and estate.
On June 16, 2008, Terry and Joyce, as conservators of the person and estate of Carmen J. Jones, filed a "PETITION FOR REMOVAL OF TRUSTEE [Raymond]; FOR RETURN OF TRUST ASSETS; FOR FRAUD; CONVERSION AND ELDER ABUSE; FOR AN ACCOUNTING." The removal petition alleged Raymond, as trustee, wrongfully deeded to himself real property that was an asset of the trust.
In October 2008, Raymond, represented by an attorney, filed a petition for conveyance of real property under claim of right (§ 850), alleging the property was his in the first place, and that he had deeded it to his mother, for her to hold in trust, as an "estate plan" for him because he had a potentially life-threatening disease.
On March 11 and 12, 2009, the probate court held a bench trial. No party requested a statement of decision (Code Civ. Proc., § 632) or arranged for a court reporter to transcribe the oral proceedings.
On April 28, 2009, the probate court issued a written ruling, denying Raymond's claim to the real property, removing him as trustee, and appointing Terry as trustee. The court found among other things that Raymond's testimony was "inconsistent, evasive and self-serving . . . . He had no reason to believe . . . that he had the right to deal with the trust property as his own property. He committed a breach of trust." The court set forth specifically the matters on which the court disbelieved Raymond's testimony.
The court deferred the matter of attorney fees based on misuse of trust property (Welf. & Inst. Code, §§ 15610.30, 15657.5, subd. (a)). Finally, the probate court found there was not enough clear and convincing evidence to strip Raymond of his status as trust beneficiary pursuant to § 259 [any person who engages in elder abuse with bad faith and fraud shall be deemed to have predeceased a decedent].
On July 6, 2009, Carmen Jones died.
On July 28, 2009, the probate court granted the conservators' motion for attorney fees, based on Raymond's misuse of trust property (Welf. & Inst. Code, §§ 15610.30, 15657.5) and ordered Raymond to pay the conservators' attorney's fees of $15,761.25, plus $829 in costs. The probate court's written ruling said Raymond lost any interest in the property when he consented to his mother transferring it to her trust, with Raymond as sole beneficiary. Raymond's interest was then only as trust beneficiary. His transfer of the property out of the trust after his mother developed dementia, deprived her of the benefit of the only significant asset in her trust. The written ruling found Raymond committed financial abuse. (Welf. & Inst. Code, §§ 15610.30, 15657.5.)
On August 26, 2009, Raymond, in propria persona, filed a notice of appeal (C062865) from "Judgment after court trial," specifying the July 28th and April 28th orders. On October 5, 2009, the probate court entered a "JUDGMENT AFTER COURT TRIAL," reiterating the rulings of its July 28th and April 28th orders.
Though not mentioned by the parties, it appears Raymond's August 2009 appeal is untimely as to the order mailed by the court clerk on April 2009, insofar as that order removed him as trustee, because such an order is immediately appealable. (§§ 1304, 17200.) However, the April 2009 order also denied Raymond's claim of right to the property, and both the April and July 2009 orders were incorporated in the judgment entered in October 2009. The August 2009 notice of appeal was filed before the ensuing judgment. The conservators' position is that Raymond appeals from the judgment. We will liberally construe the notice of appeal as an appeal from the subsequent judgment. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 666, fn. 2; Cal. Rules of Court, rule 8.100.)
An appellant representing himself on appeal is entitled to no special consideration, but will be held to the same standards as an appellant represented by an attorney. (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.) We presume the trial court's judgments and orders are correct, and the appellant bears the burden of overcoming that presumption by affirmatively showing prejudicial error by an adequate record. (Cal. Const., art. VI, § 13 [no judgment shall be set aside unless error has resulted in miscarriage of justice]; Code Civ. Proc., § 475 ["There shall be no presumption that error is prejudicial"]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [burden on appellant to provide adequate record to assess error]; Forrest v. Dept. of Corporations (2007) 150 Cal.App.4th 183, 195.)
Raymond did not arrange for a court reporter to transcribe the oral proceedings. Consequently, there is no reporter's transcript in the record on appeal, and this is a judgment roll appeal. As we said in Estate of Kievernagel (2008) 166 Cal.App.4th 1024: "The record on appeal does not contain a transcript of the hearing. 'In a judgment roll appeal every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. [Citation.] The sufficiency of the evidence to support the findings is not open to review. . . .' [Citation.]" (Id. at p. 1031.)
Raymond's arguments on appeal are rambling and difficult to discern. Most appear to challenge the sufficiency of the evidence, and, as such, we need not consider them.
A supplemental clerk's transcript reflects that Raymond claims his attorney gave him bad legal advice. It appears Raymond wants to use the documents to challenge the sufficiency of the evidence but, as we have seen, his failure to have the trial court proceedings transcribed forecloses any such argument.
Raymond argues the conservators did not have legal standing to bring this action. But section 2462 authorizes conservators to "[c]ommence and maintain actions and proceedings for the benefit of the ward or conservatee or the estate."
Raymond argues the trial court should not have awarded attorney fees for elder abuse under Welfare and Institutions Code sections 15610.30 and 15657.5, because the evidence established he did not commit elder abuse under Welfare and Institutions Code section 15610.30.
While Raymond has forfeited claims based on insufficiency of the evidence, we observe the trial court's award is not inconsistent with its earlier ruling that there was insufficient clear and convincing evidence to strip Raymond of his trust beneficiary status based on elder abuse under section 259. Section 259 requires not only clear and convincing evidence of elder abuse, but also findings that the abuser acted in bad faith and was "reckless, oppressive, fraudulent, or malicious." Welfare and Institutions Code section 15657.5 merely requires, as a condition for an award of attorney fees, proof by a preponderance of the evidence that the person is liable for financial abuse, as defined in Welfare and Institutions Code section 15610.30. The latter statute states a person commits financial abuse when he obtains property of an elder "for a wrongful use or with intent to defraud, or both." (Italics added.) Raymond fails to show reversible error regarding attorney fees.
Raymond complains the probate court seemed to have mixed up the parties in its written rulings, leaving the rulings ambiguous. We have no problem understanding the probate court's decisions, and there is no evidence whatsoever to support Raymond's accusation that the judge was intoxicated.
Raymond argues the probate court denied him his right to a jury trial. He characterizes the allegations of elder abuse and conversion as "crimes." However, this was not a criminal prosecution, and "There is no right to a jury trial in proceedings under this division [Division 9, Trust Law] concerning the internal affairs of trusts." (§ 17006.)
Raymond argues he was denied "his double jeopardy rights," because he was already accused of elder abuse in the earlier conservatorship proceedings. This argument is forfeited because he did not raise it in the trial court. (People v. Belcher (1974) 11 Cal.3d 91, 96.) Even if we were to consider it, the argument would fail for various reasons. Double jeopardy is a criminal concept, providing that a person shall not "be subject for the same offense to be twice put in jeopardy of life or limb" (U.S. Const., 5th Amend.) and "may not twice be put in jeopardy for the same offense." (Cal. Const., art. I, § 15, see also § 24.) It also protects against a second prosecution for the same offense after conviction or acquittal. (Baldwin v. Dept. of Motor Vehicles (1995) 35 Cal.App.4th 1630, 1639.)
While the Legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character subject to double jeopardy principles (Baldwin v. Dept. of Motor Vehicles, supra, 35 Cal.App.4th at p. 1639), Raymond presents no authority or analysis on this point, and we therefore need not consider it. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) He also fails to cite anything in the record showing a factual basis for a double jeopardy claim.
We conclude Raymond fails to show grounds to reverse the judgment in appeal No. C062865.
Appeal No. C064672 (the Conservatorship Case)
A. Facts and Proceedings
The second appeal involves the conservatorship of the person and estate of Carmen Jones due to dementia.
Raymond's brief is filled with extraneous factual assertions immaterial to the appeal. The material facts are as follows:
On June 5, 2007, the probate court issued temporary letters of conservatorship naming a public guardian, Terry and Joyce as temporary conservators.
On September 10, 2007, the court issued letters of conservatorship to Terry and Joyce.
On September 8, 2008, the probate court approved the conservators' first accounting, over Raymond's objection.
In July 2009, Carmen Jones died.
On March 16, 2010, the probate court, in a minute order signed by the judge, approved the conservators' second and final accounting and approved specific amounts for legal fees and costs and reimbursement of the conservators' costs. The hearing was not reported.
On March 26, 2010, Raymond, in pro per, filed a notice of appeal from the March 16, 2010, "Judgment after court trial."
On appeal, Raymond repeatedly refers to the Lanterman-Petris-Short Act (LPS), Welfare and Institutions Code section 5350 et seq., which authorizes conservatorships for gravely disabled persons. However, he cites nothing in the record showing this was a LPS conservatorship rather than a Probate Code conservatorship (§ 1800 et seq.). The main difference between the two is that the LPS conservator has authority to place the conservatee in a locked facility against his or her will. (People v. Karriker (2007) 149 Cal.App.4th 763, 780.) Here, the probate court gave that authority to the conservators, but under the Probate Code (§ 2356.5), which allows such authority if certain requirements are met. (Ibid.) In any event, Raymond cites no LPS provision that would yield a different result in the disposition of this appeal.
1. Appealability of the March 16, 2010, Minute Order.
We first consider a point not raised by the parties--whether the March 16, 2010, minute order signed by the judge is a final appealable order, in view of the fact that the minute order directed preparation of a formal order, which was not done. (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 305 [minute order that normally would have been effective on entry in minutes was not a final appealable order, where it directed defendant to prepare, serve and file a formal order]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 613, pp. 688-689.) We conclude the minute order is appealable.
The minute order, signed by the judge, states in part:
"COURT MAKES THE FOLLOWING FINDINGS AND ORDERS:
"The Court orders that the Conservators Second and Final Account Report is approved, allowed and settle[d] as filed with the following modifications:
"Court approves legal fees of $1331.82 and authorizes the Petitioner to pay Campbell and Clark an additional $1035.00 and added cost of $605.00 incurred following the death of the conservatee Carmen Jones.
"The Account Petitioners to reimburse themselves unpaid costs in the sum of $22,340.05, which is the balance due for prior accounting of $14,200.22 plus add costs [sic] $8039.83.
"Court clarifies what is to be paid from the Carmen Jones trust [per the preceding paragraph, is to be paid] once the trust assets are available for reimbursement and the conservators are discharged.
"Attorney Campbell to prepare the Order After Hearing."
The judge's "clarifi[cation]" is reflected in the filed "SECOND AND FINAL ACCOUNT," to which was added by interlineations that the petitioners' reimbursement to themselves of the unpaid costs was "to be paid from the Carmen Jones Trust once Trust assets are available for reimbursement."
Although no formal order appears in the record, the law does not, in this context, require one.
No formal order was required by law. Section 1048, subdivision (a), says orders (other than distribution orders) "shall be either entered at length in the minute book of the court or signed by the judge and filed." Here, the minute order was signed by the judge. It bears no court file stamp, but no one contends the order was not entered. The minute order signed by the judge was specific, and no one contends further judicial action is required.
The subject matter of the order--approving the final accounting, attorney fees, and reimbursement of the conservators' costs--is clearly appealable. Section 1300 says, "In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶] . . . [¶] (b) Settling an account of a fiduciary. [¶] . . . [¶] (e) Fixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney. [¶] (f) Fixing, directing, authorizing, or allowing payment of the compensation or expenses of a fiduciary. . . ."
We conclude the March 16, 2010, order is appealable.
2. Prior Order For Temporary Conservators.
In his appeal from the order approving the final accounting, Raymond complains about the probate court's prior order granting temporary letters of conservatorship to Terry and Joyce. However, as noted in the respondents' brief, an order granting temporary letters is not appealable. Thus, section 1301 provides in part: "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 guardianship or conservatorship, except letters of temporary guardianship or temporary conservatorship. . . ." (Italics added.) We therefore need not address Raymond's argument about the prior order for temporary conservatorship letters.
3. Prior Order Approving First Accounting.
In his appeal from the March 2010 order approving the final accounting, Raymond also challenges the September 8, 2008, order approving the first accounting. However, his March 26, 2010, notice of appeal is untimely as to the first accounting. An order approving an accounting is appealable. (§§ 1304, subd. (a), 17200.) However, in the absence of public emergency, the maximum time for filing an appeal is 180 days after entry of the order. (Cal. Rules of Court, rules 8.104(a), 8.66.) "Entry" of an order includes the date the order was filed. (Rule 8.104(c).) Here, the court signed the order in open court, in Raymond's presence, and filed it on September 8, 2008. The March 2010 appeal comes too late to encompass a challenge to the September 2008 order.
4. Order Approving Final Accounting, Fees, and Costs.
Raymond appeals from the order approving the final accounting and allowing fees and costs. His arguments are incoherent and appear for the most part to turn on his view that the conservators were "pillaging and destroying" the trust assets. As indicated, an appellant appearing in propria persona is held to the same standards as an appellant represented by counsel; the appellant must affirmatively demonstrate reversible error by an adequate record. (City of Los Angeles v. Glair, supra, 153 Cal.App.4th at p. 819; Forrest v. Dept. of Corporations, supra, 150 Cal.App.4th at p. 195.) Insofar as Raymond's arguments implicate substantial evidence standards, his appeal fails due to the absence of a reporter's transcript. (Estate of Kievernagel, supra, 166 Cal.App.4th at p. 1031.)
Raymond complains the probate court did not require the conservators to pay a bond under Probate Code sections 2320 and 3701 and California Rules of Court, rule 7.207. He fails to explain the applicability of Probate Code section 3701, which addresses court proceedings to set aside an absentee's personal property for the absentee's family. Probate Code section 2320 does require conservators to give a bond, and California Rules of Court, rule 7.207 implements the statutory requirement, but Probate Code section 2321 allows the court to waive the bond for good cause. Raymond fails to show he objected in the probate court to the absence of a bond, and we see no mention of a bond in Raymond's written objection to the conservatorship petition. Raymond also fails to show the absence of good cause. He cites nothing in the record concerning a bond. We note the public guardian who initiated the conservatorship proceedings asked for exemption from the bond requirement, noting Terry and Joyce would be required to assist the mother financially because her income would not meet her needs. Raymond, as appellant, has failed to meet his burden to demonstrate reversible error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
In appeal No. C062865, the October 5, 2009, judgment, is affirmed, as are the incorporated orders filed on April 28, 2009, and July 28, 2009.
In appeal No. C064672, the March 16, 2010, order approving the final accounting, fees and costs, is affirmed.
In both appeals, the conservators shall recover costs on appeal from appellant Raymond Harris. (California Rules of Court, rule 8.278(a)(1).)
We concur: ROBIE , J. BUTZ , J.
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