Filed 8/18/26 Conservatorship of Fried CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
Conservatorship of the Person and B346754
Estate of CAROLYN HOPE FRIED
(Los Angeles County
Super. Ct. No.
24STPB11467)
MARSHALL LELAND FRIED,
Petitioner and Appellant,
v.
CAROLYN HOPE FRIED,
Objector and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie C. Santoro, Judge. Reversed and
remanded with directions.
Lurie, Zepeda, Schmalz, Hogan & Martin, Troy L. Martin
and Victoria V. Tsylina for petitioner and appellant.
Klapach & Klapach, Joseph S. Klapach for respondent.
_______________________________________
Marshall Fried appeals from an order denying his petition
to appoint a conservator of the person and estate of his mother,
Carolyn Hope Fried. He argues the trial court erred by denying
his petition without holding an evidentiary hearing. Carolyn1
counters that the record indicates the court did hold an initial
evidentiary hearing, and the court only denied Marshall’s request
for a second hearing. She alternatively argues Marshall failed to
present a triable issue of fact that required an evidentiary
hearing.
We agree with Marshall. A probate court must conduct an
evidentiary hearing on contested probate petitions. The issues
raised in the petition—whether Carolyn was able to make her
own medical and financial decisions, and whether she was unable
to resist fraud or undue influence—were contested. Yet based on
a fair reading of the applicable minute orders, the court did not
hold an evidentiary hearing. Rather, the trial court ruled on the
petition after allowing Carolyn to address the court without
permitting cross-examination or the presentation of conflicting
evidence. We therefore reverse the order denying the petition
and remand the matter for an evidentiary hearing. We express
no opinion, however, on whether a conservatorship is appropriate
in this case.
BACKGROUND
In October 2024, Marshall filed petitions for a temporary
and permanent conservatorship of his 96-year-old mother,
Carolyn’s, estate and person. Both petitions alleged that Carolyn
suffers from cognitive impairments and is unable to manage her
personal, financial and medical affairs. They further alleged that
1 We refer to members of the Fried family by the first names
for clarity and ease of reading.
2
Carolyn is unable to resist undue influence or fraud, citing
various reasons including that Carolyn’s neighbor, Donna King,
has inserted herself into Carolyn’s life as an unlicensed caregiver
and “has begun writing progressively larger checks to herself
from [Carolyn’s] account.”
Carolyn filed objections to both petitions. In her objections
to the temporary conservatorship petition, Carolyn stated she “is
fully capable of making her own medical and financial decisions,
is not being subjected to any influence, let alone undue influence,
and vehemently objects to the imposition of any conservatorship.”
Likewise, she asserted in her objections to Marshall’s petition for
appointment of a permanent conservator, that she “remains fully
capable of handling and directing her own affairs.” In support of
her objections, Carolyn submitted: (1) a “Capacity Declaration”
from her treating physician, Dr. Aslan Pirouz, in which he opined
that Carolyn “has the capacity to give informed consent to any
form of medical treatment”; and (2) the declaration of David
Fried, Carolyn’s other son, in which he declared based on his
personal observations that his mother “has had the ability to
make major decisions concerning her care, financial and personal
affairs.” Marshall identified the issues he sought to litigate in an
evidentiary hearing—whether Carolyn is unable to make her own
medical and financial decisions, and whether she is unable to
resist undue influence or fraud. The response specified his
supporting evidence, which, according to Marshall, “includes, but
is not limited to, the evidence submitted with the Petition (i.e.,
evidence of Carolyn’s hospitalization, cognitive difficulties
witnessed thereafter, the alleged elder abuse by Donna King in
writing inappropriate checks, suspicious withdrawals of funds,
and sudden change in Carolyn’s estate planning goals).”
3
Marshall further asserted that he intended to produce medical
evidence of her incapacity, and that he would be filing a motion to
compel the mental examination of Carolyn.
Marshall attached to his response the Probate
Investigator’s Report dated January 6, 2025. After interviews
with Carolyn, Marshall, David, and King, the investigator
concluded that “Carolyn could benefit from the appointment of a
neutral professional fiduciary to oversee her financial affairs, and
to ensure they are protected given several allegations of financial
abuse being made by both the proposed conservator son and
Carolyn.”
On January 10, 2025, the court called the matter for
hearing on the conservatorship petition but ultimately continued
the hearing to March 6, 2025.2 The minute order states the court
provided Marshall with an “ ‘ok to set’ ” date of February 6, 2025
for the filing of a motion to compel a mental examination of
Carolyn. It further states that the court found “additional
evidence by supplemental declaration or additional
documentation is required to grant the matter on calendar this
date upon the reading of the moving papers and consideration of
all presented evidence.”
On February 6, 2025, Marshall moved to compel a mental
examination of Carolyn, which Carolyn opposed.
On March 6, 2025, the court held a hearing on Marshall’s
conservatorship petition. According to the minute order, Carolyn
wished to address the court and “spoke for several minutes
regarding her wishes.” The minute order further indicates the
court denied Marshall’s demand for an evidentiary hearing,
2 At an earlier hearing, the court denied the temporary
conservatorship petition without prejudice.
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reasoning: “[T]hough the Probate Code provides for the taking of
admissible evidence in instances where the pleadings are
contested, there is still a threshold that must be met to proceed to
an evidentiary hearing. Without such a threshold, every
petitioner bringing a petition for conservatorship, to which a
conservatee objects, would be entitled to an evidentiary hearing,
even absent any scintilla of evidence to support the imposition of
a conservatorship. This would be unworkable for the Court and
require many unnecessary trials and backlog the Court’s
calendar.”
The minute order goes on to state: “As to [Marshall’s]
contentions that he was unprepared to present evidence because
he was not given adequate notice, and therefore, there is a
violation of due process, the Court notes that this was not an
evidentiary hearing. Rather, as the person sought to be
conserved, [Carolyn] has a right to be present at the hearing and
to address the Court. Further, the Court is most concerned with
the due process rights of [Carolyn], the person whose civil and
legal rights would be curtailed if the petition were granted.”
The court concluded that an evidentiary hearing was not
necessary because it is “satisfied that [Carolyn] is able to manage
her personal and financial affairs without the need for a
conservatorship.” The court found Carolyn’s “statements in open
court to be very credible, lucid, and coherent, not only for any
individual, but even more so for an individual of 96
years. . . . [Carolyn] spoke with clarity and self-awareness not
only as to the history of her business venture with [Marshall], but
also how she regrets certain decisions she may have made along
the way. . . . [T]his shows [Carolyn] not only has full faculty as to
her memory, but that she is also able to exercise independent
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awareness and be able to assess her decisions with the benefit of
hindsight.” The court therefore denied the petition and further
denied Marshall’s motion to compel a mental examination as
moot.
DISCUSSION
Marshall contends the trial court erred by denying his
conservatorship petition without affording him the ability to
cross-examine Carolyn or submit conflicting evidence. Carolyn
concedes a probate court must conduct an evidentiary hearing on
contested probate petitions. She counters, however, that the
record indicates the court already conducted a hearing on
January 10, 2025 and the Probate Code does not require two
evidentiary hearings. She alternatively contends that a probate
court is not required to conduct an evidentiary hearing unless
triable issues of fact exist, and none exist here. We are
unpersuaded by either of Carolyn’s arguments.3
I. The relevant minute orders do not indicate there was
an evidentiary hearing on January 25
The January 25, 2025 minute order indicates the court
continued the hearing on the conservatorship petition to March 6;
set a date for the filing of a motion to compel a mental
examination of Carolyn; and ordered the parties to meet and
confer regarding private mediation. Then, according to the
3 We reject Carolyn’s additional argument that Marshall
failed to provide an adequate record on appeal based on the lack
of reporters’ transcripts. As discussed in detail below, based on
an objectively reasonable interpretation of the applicable minute
orders, it is clear the trial court did not conduct an evidentiary
hearing on the conservatorship petition. We therefore can
discern reversible error from the record.
6
March 6, 2025 minute order, the trial court denied Marshall’s
request for an evidentiary hearing, noting “this was not an
evidentiary hearing” and an evidentiary hearing “is not
necessary.”
Carolyn nevertheless contends the record demonstrates the
court held an evidentiary hearing on January 25, pointing to the
following language in the order: “The Parties are affirmed and
testify”; and “The Court takes testimony.” This boilerplate
language alone does not demonstrate the court conducted an
evidentiary hearing. 4 Indeed, in the March 6 order, in which the
court expressly denied Marshall’s request for an evidentiary
hearing, the minute order similarly states the “Court takes
testimony.” Moreover, the March 6 order indicates the court
declined to hold an evidentiary hearing based on its finding that
Marshall did not meet some “threshold” to proceed to an
evidentiary hearing, not because it had already conducted one.
And finally, the January 10 minute order states the court ordered
mediation and set a hearing date for a discovery motion, both of
which generally would occur before an evidentiary hearing takes
place.
Accordingly, the minute orders, considered together and in
context, show the court did not hold an evidentiary hearing on
4 Marshall requests we take judicial notice of probate
department minute orders in other matters. He contends that
these orders will show that the contested boilerplate language is
“generally included in probate minute orders.” We deny
Marshall’s request for judicial notice because superior court
orders in other matters are not relevant to the dispositive issues
on appeal. (Arce v. Kaiser Foundation Health Plan, Inc. (2010)
181 Cal.App.4th 471, 482.)
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the conservatorship petition. We therefore turn to whether the
denial of an evidentiary hearing constituted reversible error.
II. The trial court prejudicially erred
Probate Code section 1022 provides: “An affidavit or
verified petition shall be received as evidence when offered in an
uncontested proceeding under this code.” Interpreting this
statute, California courts have held that a probate court must
conduct an evidentiary hearing on “contested” petitions. (See e.g.
Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425–427 (Dunlap)
[probate court abused its discretion by not holding an evidentiary
hearing on the contested petition for an accounting]; see also
Estate of Lensch (2009) 177 Cal.App.4th 667, 677 [respondent’s
opposition “transformed appellants’ unopposed petition to a
contested one” and thus, the “probate court should have granted
the request for an evidentiary hearing”]; Estate of Bennett (2008)
163 Cal.App.4th 1303, 1308 [holding the probate court erred in
failing to conduct an evidentiary hearing on petitioners’ motion to
set aside and rescind a settlement agreement and stating the
Probate Code limits use of affidavits to uncontested
proceedings].)
Here, Marshall filed a conservatorship petition based on
allegations that Carolyn showed alarming signs of cognitive
decline after she was hospitalized in 2024, and that Carolyn is
being unduly influenced by King. He further alleged that after
Carolyn’s hospitalization, King began writing increasingly large
checks to herself—copies of which Marshall attached to the
petition. He also alleged that Carolyn was “taken to a new estate
planning attorney” who removed Marshall as her co-trustee and
agent under her power of attorney for the past decade (and
submitted supporting estate planning documents).
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Carolyn opposed the petition, and submitted a declaration from
her primary care physician that she retains all her mental
faculties and is fully capable of making her own medical
decisions, and the declaration of her other son. The factual
conflicts presented by the parties’ competing papers mandated an
evidentiary hearing. (Prob. Code., § 1022.) Thus, the probate
court prejudicially erred by not only denying Marshall an
evidentiary hearing, but permitting Carolyn to address the court
without affording Marshall an opportunity to cross-examine her.
(See CSV Hospitality Management, LLC v. Lucas (2022) 84
Cal.App.5th 117, 125 (CSV) [deprivation of the right to cross-
examine requires reversal because we cannot know what the
witness “would have said on cross-examination, or the effect such
testimony might have had on the trial court’s decision”].)
Carolyn urges that Marshall was not entitled to an
evidentiary hearing because he “failed to present any triable
issues of material fact in support of his conservatorship petition.”
We need not address the merits of this contention because
“triable issues of material fact” is not the standard. Carolyn
correctly notes that probate courts summarily dispose of probate
petitions in response to demurrers, motions for judgment on the
pleadings, summary judgment motions, and motions for nonsuit.
But because Carolyn did not file any of these motions, the
standards and procedures applicable to those motions do not
apply here.
Moreover, this new hurdle Carolyn seeks to impose on
parties requesting an evidentiary hearing finds no support in the
case law. For example, in Estate of Bennett, supra, 163
Cal.App.4th at p. 1308, appellants argued the court erred in
denying their request for an evidentiary hearing because the
9
evidence before the trial court created material issues of fact.
But the Court of Appeal did not adopt the “material issues of
fact” standard. Rather, it agreed with appellants that the
probate court erred in failing to conduct an evidentiary hearing
because “the Probate Code limits the use of affidavits to
‘uncontested proceeding[s].’ ” (Id. at p. 1309.) The court in Estate
of Lensch similarly held that because respondent objected to the
petition, the probate court should have granted the request for an
evidentiary hearing that appellants made three times at the
hearing on their petition. (Estate of Lensch, supra, 177
Cal.App.4th at p. 677.)
Carolyn also relies on Conservatorship of Farrant (2021) 67
Cal.App.5th 370, but it is unhelpful to her position. There, the
Court of Appeal affirmed the probate court’s order denying an
evidentiary hearing on a disputed accounting where “[i]nstead of
specifying the factual issues he intended to litigate and the
relevant evidence (testimony and exhibits) he would produce at
the hearing, appellant’s counsel made vague representations.”
(Id. at p. 378.) These vague representations included statements
at the hearing such as, “ ‘We believe that if there’s a full
evidentiary hearing, the Court may change its mind, and the
result would be different’ ” and “ ‘[H]e believes that if the Court
give[s] him an opportunity to address the Court and make
additional inquiry contemporaneously, . . . he would come out
better, and the sanction at least could be reduced.’ ” (Id. at p.
378, fn. 4.)
To be clear, we do not disagree with the general proposition
that a probate court may, in its discretion, request an offer of
proof specifying the issues to be litigated and the relevant
evidence to be decided before proceeding with an evidentiary
10
hearing on a conservatorship petition. Nor do we disagree that if,
as in Conservatorship of Farrant, an objecting party is unable to
make a reasonable offer of proof as to what will be proven at the
hearing beyond generalities and vague representations, a probate
court acts within its discretion by denying a request for an
evidentiary hearing. In this case, however, as we discuss above,
Marshall specified in detail the issues to be litigated at the
evidentiary hearing and the relevant evidence he expected to
introduce at that hearing. He did make an adequate offer of
proof. On this record, therefore, the probate court did not have
discretion to deny his request for an evidentiary hearing outright.
We are sympathetic to the court’s concerns that evidentiary
hearings on contested petitions will require “many unnecessary
trials and backlog the Court’s calendar.” But permitting the
potential conservatee to address the court without an opportunity
to cross-examine and present conflicting evidence violates “a due
process right that is fundamental to a fair proceeding.” (CSV,
supra, 84 Cal.App.5th at p. 125.) The Probate Code plainly
requires an evidentiary hearing on Marshall’s contested petition,
and the trial court prejudicially erred by failing to conduct one.
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DISPOSITION
The March 6, 2025 order is reversed. The matter is
remanded to the trial court to hold an evidentiary hearing on
Marshall’s petition to appoint a conservator of Carolyn’s person
and estate. Appellant is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
DAUM, J.
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