(Super. Ct. No. 08PR014), (Super. Ct. No. 07PR0017)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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 ...