Conservatorship of Davis

Filed 1/6/10 Conservatorship of Davis CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Brenda J. Penny, Judge. Reversed.

Hillel Chodos and Jonathan P. Chodos for Objector, Petitioner and Appellant.

Palermo, Barbaro, Chinen & Pitzer, Gloria Pitzer and Philip J. Marr for Gloria Pitzer, Petitioner and Respondent.

INTRODUCTION

Appellant Allen V. C. Davis appeals from the order of the probate court that directs payment of fees incurred by the court-appointed Probate Volunteer Panel (PVP) attorney out of the estate of the proposed conservatee, Lenabelle Berg Davis, Allens wife.[1] Allen contends that for myriad reasons the probate court had no jurisdiction to order payment from Lenabelles estate. We hold, although the probate court had authority to direct the payment of fees from Lenabelles estate, that where Allen was not given notice of the hearing on the PVP attorneys fee request, the order must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Allen and Lenabelle were married for more than 60 years. Lenabelle suffered a severe stroke with long-lasting effects.

On September 10, 2008, the Daviss daughter, Joann D. Acuff, filed a petition for appointment as conservator of Lenabelles person and estate. Allen objected to Joanns petition for appointment as conservator. There is apparently litigation between Allen and the Daviss children concerning ownership and control of certain business interests.

In September 2008, the probate court, on its own motion, appointed a lawyer, Margaret Lodise from the Probate Volunteer Panel, as PVP attorney. Apparently, attorney Lodise declined the appointment, because on October 14, 2008, the court appointed attorney Gloria Scharre Pitzer as PVP attorney for Lenabelle. That appointment specified that the court would determine attorney fees and that in accepting the appointment, the PVP attorney understood that except in cases involving unusual problems requiring extraordinary expertise, the hourly rates [for attorney fees] shall not exceed $225.00 per hour when paid by the estate and $125.00 per hour when paid by the County. (Italics added.)

During this fracas, and before Joanns petition was heard, Lenabelle passed away on December 21, 2008, leaving a large estate including substantial real estate holdings and business interests generating millions of dollars of annual income.

Three days later, on December 24, 2008, the PVP attorney filed a Report of Court‑Appointed Counsel for Conservatee. The report requested the termination of the conservator proceedings and that, [b]ecause of the size of this estate and the complexity of the issues involved herein, the PVP counsel be compensated at a higher rate than normally awarded PVP attorneys. This report and attached description of the PVPs hourly activities was served on Allens attorney, among others.

On January 5, 2009, the matter of appointment of a conservator was heard before a commissioner instead of the judge assigned to the case. Allens attorneys did not appear for the hearing, believing that Lenabelles death in December had rendered the proceeding moot and so it would be dismissed. The record indicates that the parties stipulated to the judge pro tem, although Allen asserts that he made no such stipulation because he did not appear. The temporary judge ordered the competing petitions for appointment of conservator off calendar, awarded the PVP attorney fees in the amount of $9,170.00, and discharged her.

CONTENTIONS

Allen does not challenge the amount of the PVP fee award but contends that the probate court lacked jurisdiction to order that those fees be paid from Lenabelles estate.

DISCUSSION

1. The probate court was empowered to appoint a PVP attorney.

 Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.  [Citation.] (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void . . . . (Ibid.) Clearly, that is not the case here. The probate court had complete authority over the subject matter of this case because California residents filed petitions requesting their appointment as conservator for Lenabelle. That the competing petitions for appointment were ultimately rendered moot by Lenabelles death did not vitiate the courts fundamental jurisdiction in the first place.

The second type of jurisdictional error occurs when the court has jurisdiction over the subject matter and the parties in the fundamental sense, but  it has no jurisdiction (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. [Citation.] (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.) Here, the probate court decidedly had the power or jurisdiction to appoint the PVP attorney. Probate Code section 1470 authorizes the probate court to appoint a private attorney for a proposed conservatee if the court determines that the proposed conservatee is not represented by an attorney and an attorney would be helpful in resolving the matter or is necessary to protect the proposed conservatees interests. (Prob. Code,  1470, subd. (a).)[2] Not only did the court have the authority to appoint PVP counsel, but Lenabelles illness combined with the bitter intra-family litigation leads to the inescapable conclusion that the court would have been remiss had it failed to appoint one. Therefore, the court had the jurisdiction to appoint PVP counsel.

2. The probate court was empowered to direct payment of the PVP attorneys fees from Lenabelles estate.

What is more important, having appointed PVP counsel, the probate court was required to fix a reasonable sum for counsels compensation and expenses (Prob. Code,  1470, subd. (b))[3] and had the authority to order that payment of such fees and expenses be paid by Lenabelles estate. Section 1470, subdivision (c) specifies, 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. (Italics added.)

In Brown v. Superior Court (1981) 119 Cal.App.3d 189, the appellate court held that under the discretionary provisions for appointment of private legal counsel (Prob. Code,  1470), where the conservatee is financially able to retain a private attorney, the probate court acts in excess of its authority if it appoints a public defender as the PVP attorney. (Brown v. Superior Court, supra, at p. 192.) Accordingly, the Superior Court of Los Angeles County, Local Rules, rule 10.87,[4] cited by the order appointing PVP attorney, allows the probate court to order the PVP attorneys fees be paid by the County, only to the extent the Court determines the person is unable to pay. (Super. Ct. L.A. County, Local Rules, rule 10.87(b)(3), italics added; cf Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 549-550 [the value of estate is appropriate factor in setting fees for conservators attorney].) Accordingly, the probate courts power in this area is manifest and it must order payment of the PVP attorney fees from the estate unless the estate cannot bear that cost.

As the report from the PVP attorney shows, Lenabelles estate clearly had the ability to pay a $9,170 fee. (Super. Ct. L.A. County, Local Rules, rule 10.87(b)(3).) Allen argues, without citation to authority, that the appointment of the PVP attorney was for the benefit of the trial court not Lenabelle, with the result that the court should pay for the costs out of County money. Actually, based on these authorities, the court had no authority to order payment from the County. In sum, the probate court had jurisdiction to order payment of the PVP attorneys fees from Lenabelles estate. (Ibid.)[5]

3. The record does not indicate that Allen was given notice that the January 5, 2009 hearing would encompass the PVP attorneys fee request.

Allen contends that the probate courts order directing the payment of the PVP attorneys fees from Lenabelles estate is void for failure to give him notice. He also argues that he never stipulated to the commissioner who made the order.

Probate Code section 1470 specifies that the court may not make an order for the payment of attorney compensation and expenses by the parents if the conservatee is a minor without first giving the parents notice and the opportunity to be heard. (Prob. Code,  1470, subd. (d).) No similar requirement of notice and opportunity to be heard is specified by subdivision (c)(1) when the conservatee is an adult. However, Superior Court of Los Angeles County, Local Rules, rule 10.87(b)(4) provides that If no court appearance is required of the Court-appointed attorney, a petition for compensation should be filed and set for hearing in the ordinary manner. This is really a matter of due process. Essential to in personam jurisdiction to render a money judgment is notice and an opportunity to be heard in conformance with due process of law. [Citations.] (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.)

The PVP attorney argues that Allen had notice of the January 5, 2009 hearing because his counsel was present in court when it continued the hearing on the conservatorship petitions to that date. As Allen explains, he did not appear at the continued hearing because Lenabelles death in December 2008 rendered her conservatorship moot. Although the PVP attorneys report, which was served on Allens attorney, did request fees from the estate, we discern nothing in the record, and the PVP attorney cites to nothing, indicating that Allen was notified that at the January 5, 2009 hearing on the conservator petitions the court would also consider the PVP attorneys fee request. Thus, Allen was denied the opportunity to present any objections to the fee request and order.

Additionally, temporary judges are only authorized to act upon the stipulation of the parties. (Cal. Const., art. VI, 21; Code Civ. Proc., 259, subd. (d); Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 654-655.) Although the minute order from January 5, 2009 indicates that the parties stipulated to the temporary judge, Allen could not have stipulated if he was absent from the proceedings. Moreover, the order after the hearing listed those present and neither Allen nor his attorney is mentioned. Thus, Allen did not stipulate to the temporary judge who ordered Lenabelles estate to pay the PVP counsel.

Allens remaining contentions are unavailing. The order awarding the PVP attorney $9,170 must be reversed because Allen neither (1) received notice that the probate court would consider the PVP attorneys fee request, nor (2) stipulated to the temporary judge who made the ruling.

DISPOSITION

The order is reversed. Each party to bear its own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] We refer to the parties by their first names for clarity and intend no disrespect thereby.

[2] Although Allen contends the probate court made no findings to support the appointment of a PVP attorney, there is no evidence that he ever raised this ground below, either in September 2008 when the first PVP attorney appointment was made, or in October 2008, when the second appointment was made. Having failed to raise it in the probate court, Allen cannot be heard to raise this contention now. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526, 1536.)

[3] Probate Code section 1470, subdivision (b) reads, 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. (Italics added.)

[4] Superior Court of Los Angeles County, Local Rules, rule 10.87(b)(3) provides that the court may order the fees to be paid by the estate or party(ies) or, when authorized by statute, by the county to the extent the Court determines the person is unable to pay. (Italics added.)

[5] We are unpersuaded by Allens contention that the order appointing the PVP attorney specified that funds would be paid by the County. Apart from the fact, as explained, that the court is not empowered to order payment from County funds where Lenabelles estate clearly could support the award, the order appointing counsel does not support the conclusion that the court intended the County bear the cost. The courts order consists of two pages. The first, as described, is a court order under the caption of this case, is specific to Lenabelle, and describes the hourly rate for attorney fees when paid by the estate and when paid by the County. The second page is a boiler plate form entitled appointment order professional appointee court expense, and contains numerous boxes where the court can check off the appropriate appointment, i.e., as attorney, doctor, expert witness, public defender, private attorney, alternate defense counsel, in criminal, juvenile delinquency, and juvenile dependency, mental health, and traffic cases, to name a few choices. Clearly, the first page, applicable specifically and only to this case, governs over the more general boilerplate form. (Code Civ. Proc., 1859 [when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.]; see Kavruck v. Blue Cross of California (2003) 108 Cal.App.4th 773, 781.)