Conservatorship of
Filed 5/9/13 Conservatorship of Johnston CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
Conservatorship of the Person and Estate of WARDELL D. JOHNSTON, JR. | |
KENNETH SEASTROM, Petitioner and Appellant, v. KIM SCHWARCZ, Objector and Respondent. | A133734 (Marin County Super. Ct. No. PR074020) |
Kenneth
Seastrom, the Conservator of the Person for Wardell D. Johnston, Jr.,
appeals from an order granting the Petition for Order to Sell Residence of
Conservatee filed by Johnston’s Conservator of the Estate, Kim Schwarcz. Appellant contends the trial court erred, and
violated his due process rights, in granting respondent’s petition and
authorizing sale of Johnston’s home
without an evidentiary hearing. He
additionally seeks remand on the ground that proper notice was not given to Johnston. We agree with respondent’s contention that
appellant lacks standing to bring this appeal and, therefore, affirm.
STATEMENT OF THE
CASE AND FACTS
Wardell
Johnston, Jr., is an elderly man suffering from
conditions, presently living at the Silverado Senior Living facility in Belmont. Appellant, Kenneth Seastrom, a long-time
friend of Johnston’s, was appointed
Conservator of the Person for Johnston
in October 2007. Johnston’s
court-appointed attorney opposed appellant being appointed conservator of the
estate, believing a fiduciary should serve in that role. Shortly thereafter, respondent, Kim Schwarcz,
a professional fiduciary, was appointed Conservator of the Estate.
In
August 2008, respondent sought an order to sell Johnston’s
house. Johnston
had been living in care facilities since 2007, and respondent informed the
court that his house was in “bad shape,†she had received bids for repairs in
the amount of $250,000, and it was going to be difficult to maintain insurance
on the property. Photographs of the
house reflect the extent of Johnston’s
hoarding behavior. The court denied the
petition without prejudice, finding that financial need for sale had not been
justified and the conservatee had to be asked directly about the proposed
sale. Respondent proceeded with repairs
and renovations of the property.
On
November 19, 2010,
respondent filed a petition seeking instruction whether to lease the property
or have it remain vacant in case Johnston
was able to return to live there.
Respondent stated that Johnston
had been living at the Silverado Senior Living facility in Belmont
since May 2008. He was 89 years old,
suffered from dementia and multiple medical conditions requiring daily
medication and supervision, was happy and well cared for at the facility, and
enjoyed social activities there; respondent had been advised by Johnston’s
attorney and physician that in their opinion it would not be in Johnston’s best
interest to return to his home, and this view was shared by the court’s
investigator.
Appellant
filed objections to the petition. His
declaration stated that it had always been his goal to get Johnston’s
home cleaned and repaired so that Johnston
could return to live there, and that Johnston
had consistently expressed his desire to move back home. Appellant described efforts he made to this
end, and ways that respondent was attempting to make this option
unavailable. Appellant provided reports
and communications from several of Johnston’s
physicians opining that it would be safe for Johnston
to live at home provided he had 24 hour a day care. Appellant stated that he had contacted a
professional care manager, who had visited Johnston,
performed an informal assessment, and was ready to assume the role of care
manager for Johnston in his home,
and had arranged for Johnston to
participate in Senior Access Adult Services in addition to private activities
provided by appellant and Johnston’s
caregivers.
In
a declaration filed on February 28,
2011, Johnston’s
attorney, Pauline Sloan, opined that Silverado was the least restrictive
placement for him and residing there was in his best interest. Sloan stated that when she visited Johnston
in August and in December, he expressed no desire to relocate and said he liked
Silverado because there were “ ‘lots of things to do.’ †Sloan expressed concern about appellant’s
judgment regarding Johnston’s best interest, noting an occasion on which
appellant took Johnston to the construction site at the Mill Valley residence
without contacting the contractor, when the conditions there were dangerous,
and a time when appellant opposed Johnston’s primary care physician’s order for
a nebulizer to treat Johnston’s respiratory issues.
Respondent’s
brief addressed the physical attributes of Johnston’s residence and further
renovations required to make it safe for him to live there in light of his
physical disabilities and dementia; the potential consequences of removing
Johnston from the social environment at Silverado and returning him to a home
that would not be familiar due to the significant cleanup and remodel; and the
comparative economics of leaving the house vacant, leasing it and selling it.
An evidentiary
hearing was held on March 1, March 3, May 27, and June 27, 2011, with testimony
from Johnston’s physician, Johnston’s
attorney, Johnston, appellant, respondent and several other witnesses. The reporter’s transcript has not been
included in the record on appeal. The
register of actions recites the court’s conclusion that Johnston
“has severe short term memory
impairment and medical issues.
Returning the conservatee to his home would be more restrictive than his
placement in San Mateo insofar as
the conservatee would need 24 hour a day care.
The court also notes that this level of in home care would be
inordinately expensive.†The court
ordered that Johnston not be
returned to his home and directed respondent to arrange for sale or lease of
the residence after meeting with legal and financial counsel as appropriate.
On
September 8, 2011, respondent filed a Petition for Order to Sell Residence
of Conservatee and for Exclusive Listing, stating that after consultation with
a tax attorney about advantages or disadvantages of selling or leasing the
residence, she believed it to be in the best interest of the estate for the
property to be sold. She subsequently
filed a declaration relating her interview with Johnston about sale of the residence. The interview took place at Silverado, in the
presence of Johnston’s physician.
Respondent asked Johnston where he lived and he replied,
“ ‘here,’ †and when she asked if it would be okay to sell his house,
he said he did not want to. Responding
to a question from the physician about whether he had bills, Johnston said his
only one was for rent. He said that he
spent weekends at the house and had furniture there, although in fact the house
is unfurnished and he does not spend weekends there.
Appellant
opposed the petition. Among other
things, he denied that it was in Johnston’s best interest to sell the home,
stated that Johnston yearned for his home and did not want to sell it, and
objected to hearsay statements in the petition about the appraisal and tax
consequences of selling the property.
Appellant stated as affirmative defenses that it was in Johnston’s best
interest to rent the residence, which appellant would establish could generate
monthly rent of $5,000 to $5,500, and that respondent had violated her
fiduciary duty to ascertain the income producing potential of the home. He asked that the petition be denied because
respondent did not give adequate notice, talk to Johnston in the last three years
about selling the house or allege facts showing it was in Johnston’s best
interest to sell. Appellant also filed
objections to the petition, including that notice was sent to “ ‘Veronica
Arellano for Wardell D. Johnston, Jr.’ †instead of directly to
Johnston as required by law and that “petitions, declarations or affidavitsâ€
should not be considered as evidence, and demanded an evidentiary hearing and
trial and the opportunity to confront and cross-examine witnesses and to
testify and present witness testimony.
After
a hearing on October 3, the court found that respondent had standing to
bring the petition; that evidence supported the finding that sale of the
residence “ ‘is for the advantage, benefit, and best interest’ of the
Conservatee, a 90 year old man with debilitating illnesses who no longer has
the ability to live at his residenceâ€; that the listing agreement for sale of
the property was in conformity with court rules; and that notice of the
petition has been given as required by law.
The register of actions notes that “the court does not find that an
eviden[t]iary hearing would result in a different decision.†By order filed on October 24, 2011, the
court overruled appellant’s objection to admission or consideration of
declarations, denied his request to examine witnesses and authorized respondent
to sell the residence.
Appellant
filed his notice of appeal on
November 10, 2011. He elected to
proceed without a reporter’s transcript.
DISCUSSION
Although
presented as the last of her arguments in support of the order authorizing sale
of the property, we find dispositive respondent’s contention that appellant
lacks standing to maintain this appeal.
“[O]nly
a person aggrieved by a decision may appeal.
(E.g., In re L. Y. L. (2002)
101 Cal.App.4th 942, 948; cf. Code Civ. Proc., § 902 [‘Any party
aggrieved may appeal . . . .’].) An aggrieved person, for this purpose, is one
whose rights or interests are injuriously affected by the decision in an
immediate and substantial way, and not as a nominal or remote consequence of
the decision. (In re L. Y. L., supra, at p. 948; see County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737;
(In re K.C. (2011)
52 Cal.4th 231, 236.) To determine
whether a party is aggrieved by the trial court’s order, the reviewing court
must “precisely identify†the appealing party’s interest in the matter. (Ibid.)
As
conservator of Johnston’s person, appellant’s role is to manage Johnston’s
care, custody and education, including matters such as where Johnston resides
and what medical treatment he receives.
(Prob. Code, §§ 2350, 2351, 2352, 2355.)
the authority to make financial decisions regarding the estate. (E.g., §§ 2400, 2401, 2451.5, 2500,
2570, 2591.) Prior to the June 27,
2011, order establishing that Johnston would not return to live at home,
appellant had a clear interest in the treatment and disposition of Johnston’s
home as a potential place for Johnston to reside. Once it was established that Johnston would
not live there, however, the interest appellant sought to protect—the ability
for Johnston to live at home—was no longer at issue. The property became simply an asset of the
estate, the only question being the relative financial merits of selling or
leasing it. Respondent, not appellant,
is responsible for managing the assets of the estate.
Appellant
contends he has standing as an “interested person†and a “fiduciary
representing an interested person†under section 48,
subdivision (a)(1) and (3). Under section 1043,
which refers generally to hearings under the Probate Code (§ 1040), an
“interested person may appear and make a response or objection in writing at or
before the hearing†(§ 1043, subd. (a)) and “may appear and make a
response or objection orally at the hearing.â€
(§ 1043, subd. (b).)
Subdivision (a)(1) of section 48
provides that an “ ‘interested person’ †includes “[a]n heir, devisee, child, spouse,
creditor, beneficiary, and any other person having a property right in or claim
against a trust estate or the estate of a decedent which may be affected by the
proceeding.†Appellant does not explain
how he falls within this provision and we fail to see how he would come within
its terms.
Subdivision (a)(3)
of section 48 includes within the definition of “ ‘interested
person’ †a “fiduciary representing an interested person.†The Probate Code defines
“ ‘fiduciary’ †as “personal representative, trustee,
guardian, conservator, attorney-in-fact under a power of attorney, custodian
under the California Uniform Transfer To Minors Act (Part 9 (commencing
with Section 3900) of Division 4), or other legal representative
subject to this code.†(§ 39.) Although appellant is Johnston’s conservator,
he is only conservator of the
person. The matters as to which he
represents Johnston, therefore, are limited to those affecting Johnston’s care
and control (§ 2351). Appellant’s
representation of Johnston’s interests does not extend into the purview of the
separate conservator of the estate, respondent.
With respect to the subject matter of this appeal—the October 24,
2011, order authorizing sale of Johnston’s residence—appellant is not an
“interested party†whose interests were adversely affected by the decision. He has no standing to appeal.
The
order is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Lambden, J.
All statutory references are to the Probate Code, unless otherwise indicated.
Appellant does not claim any error with respect to (or even discuss) the order
that Johnston not return to live at home.
Although his notice of appeal states that the appeal is from the
June 27, 2011, order as well as the October 24, 2011, order
authorizing the sale, appellant’s briefs on appeal state that he is appealing
the October 24, 2011, order without reference to the June 27 order,
and his arguments are directed entirely to the October 24 order.
