Conservatorship of Wagner
Filed 1/24/13 Conservatorship of Wagner CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
Conservatorship of the Person
and Estate of CLAY WAGNER.
B229125
LES WAGNER et al.,
Petitioners and Appellants,
v.
DRU HARRIS, as Conservator,
etc.;
Objector;
CLAY WAGNER,
Respondent.
(Los Angeles
County
Super. Ct.
No. BP120000)
APPEAL from an order of the Superior
Court of
County.
Reva G. Goetz, Judge.
Affirmed.
Law Offices of Pardeep Joshi and
Pardeep Joshi for Petitioners and Appellants.
Orren &
Orren and Tyna Thall Orren for Respondent.
__________________________
Childhood
surgery to remove a brain tumor left respondent Clay Wagner (Clay),
45 years old at the time of the relevant proceedings, with memory problems
and a seizure disorder. For all of his
adult life, various family members have acted as Clay’s conservator.
Clay’s father and sister, respectively.
Appellants challenge the September 28,
2010 order denying their petition to remove Dru as Clay’s
conservator and have themselves appointed in her place. Appellants contend: (1) notice of trial on their petitions was
insufficient; (2) it was an abuse of discretion to deny their request for a
continuance of the trial; (3) they were denied
communications; (4) evidence of Clay’s wishes was inadmissible; (5) the denial
of their petitions was an abuse of discretion; and (6) the trial court’s
failure to issue a written statement of decision was
A.
Proceedings
in Ventura
Clay was 12 years old in 1977 when
he had the surgery that resulted in his deficits. Conservatorship proceedings began in Ventura
County in 1983 when that court
appointed Clay’s mother Mary and sisters Valerie and Dale coconservators of Clay’s
person and estate pursuant to the Probate Code.
together in Los Angeles. Valerie and Dale became coconservators after
Mary died in 1985. In 1988, Clay moved
with Valerie to Truckee in Nevada
County, California and in 1995,
the probate matter was transferred from Ventura
to Nevada
County.
In 1999, Valerie and Dale resigned
and Dru, who by then lived in Venice, California
with her husband, Robert Harris, was appointed Clay’s temporary
conservator. Clay remained in Truckee
with caregivers for nine years until September 2008, when Dru moved Clay to Venice
to live with her and Harris. Harris
became Clay’s In-home Social Services (IHSS) worker.
In December 2008, James petitioned
the Nevada County
court to have Dru removed as Clay’s conservator. In January 2009, appellants jointly
petitioned to be appointed Clay’s successor coconservators. An attorney from the probate volunteer panel
(PVP) was appointed to represent Clay and private professional fiduciary Carol
Desepio was appointed to supervise visits between Clay and appellants. In April 2009, psychologist Stephen Read, an
evaluator appointed by the court under Evidence Code section 730, submitted a
report. On June 2, 2009, the court made certain
visitation orders for appellants.
Appellants’ petitions were still unresolved in November 2009, when the
matter was transferred from Nevada County
to Los Angeles County,
where Clay was then living with Dru and Harris.
B.
Appellants’ petitions came on for
hearing in the Los Angeles County
court on February 19, 2010. PVP attorney Jeffrey Marvan was appointed to
represent Clay. For the continued
hearing on March 2, Marvan reported that, based on his review of Dr. Read’s
report and interviews with Clay, James, Les, Dru, Wilkerson, Desepio and
various people in Truckee, Marvan had concluded that it was difficult to
ascertain what Clay wanted because Clay liked to please people, was easily
influenced and was intimidated by authority figures. Following the hearing that day, the court
made a new visitation order. On April
29, Dr. Aida Saldivar was appointed as an Evidence Code
section 730 evaluator charged with assessing, among other things, Clay’s
susceptibility to undue influence, his relationship with Dru and Harris and
their ability to unduly influence Clay, and Clay’s relationship with
appellants.
title="">[4] Hearing on the petitions was continued to
May 25.
1.
Dru and Dale testified at the May
25 hearing regarding an order to show cause (OSC) for contempt brought by
appellants against Dru.
name="_ftnref5" title="">[5] Lynne Brady, Clay’s IHHS worker from Truckee,
also testified and it was agreed that her testimony could be considered for
purposes of the petitions as well as the OSC.
At the conclusion of the contempt proceedings, the court addressed the
petitions. PVP attorney Marvan
recommended a continuance so that he could investigate various short-term
placement options for Clay for the purpose of removing him from all potential
sources of undue influence and in that way ascertain what Clay truly wanted for
his future. For the continued hearing,
Marvan proposed having “a list of recommendations as to possible placements at
which point we’d facilitate Clay’s active participation in choosing the
specific placement.†Although there had
previously been concerns that the stress of coming to court might cause Clay to
have a seizure, Marvan stated that, based on discussions with Dr. Saldivar, he
now believed Clay could safely be brought to court. Marvan was ordered to look into short-term
placement options and the matter was continued to July 13.
13, 2010
Several witnesses testified at the
July 13 hearing in
support of appellants’ position that Clay’s best interest would be served by
removing Dru and appointing appellants, who would return Clay to Truckee. James Hoyt testified that he worked with Clay
for five years at the Safeway in Truckee.
name="_ftnref6" title="">[6] Clay was well loved by the employees and
customers. Hoyt would see Clay around
town, but he did not socialize with Clay outside of work. Robert E. Kleidosty, Jr., was the store
manager at the Safeway where Clay worked.
Clay was an excellent employee and Kleidosty would hire him back if Clay
returned to Truckee. Like Hoyt,
Kleidosty did not socialize with Clay outside of work. Deborah Franklin also worked with Clay at the
Safeway in Truckee. She would also run
into him at church and at town functions.
Clay would have no trouble finding a place to live if he returned to Truckee because Franklin would let him live at her
home.
In support of Dru’s opposition to the petitions, Brady,
Clay’s former IHHS worker, testified that Clay often became upset after
interactions with appellants, and whenever anything upset Clay, he called Dru
to calm himself down. Dru’s friend,
Jennifer Irwin, testified that Clay seemed happy living with Dru and
Harris. Clay’s sister and former
coconservator, Dale, testified that she is a licensed marriage and family
therapist living in Camarillo. She
became Clay’s conservator in 1983 because James did not want to do it. Appellants had not been involved in Clay’s
life since Clay was a child. Clay told
Dale that he gets upset around appellants.
Dale sees Clay about once a month and feels very close to him and to
Dru, whom she considers her best friend.
She has never seen Clay happier than since he has been living with
Dru. Clay told Dale “he loves his job,
he loves going to the beach, he loves going to church, he loves going
bowling. The fact that [Dru] care[s] for
him, make[s] sure that he gets his medication taken on time and that [Harris]
takes him fishing and [has] friends that involve him in activities. He has never been happier.â€
Probate investigator Carla
Cavalier-Bowdin testified that Clay consistently stated that he did not want to
go back to Truckee. Clay wanted visits
with Les, but did not want to be alone with James. Bowdin believed that if Clay were kept away
from both Les and Dru for a significant amount of time, he would be able to
express his own desires. PVP attorney
Marvan agreed that Clay’s temporary placement in a neutral setting was
essential to determine his conservator going forward.
In response to Dru’s request that
the court speak to Clay privately, in chambers, the court said that it would do
so only after Clay spent some time in a neutral setting. The parties agreed, and the court ordered,
Clay to be placed in Franklin’s home in Truckee from approximately July 17
through August 3. Clay was to have no
contact with any family members during that time. On August 3, Clay was to return from Truckee
to Los Angeles and go directly to court to be interviewed by the court.
August
3, 2010
In the two weeks prior to the
August 3 hearing, Clay had no contact with any of his family. At the beginning of the hearing, the court
met in chambers with Clay and his counsel; probate investigator Bowdin was also
present. The parties and their counsel
were not present. Immediately
afterwards, the court reported on the content of the meeting to the
parties. The court explained that Clay
said he wanted to continue living with Dru and her husband.
The court continued the matter to
September 28. Pending that hearing, it
ordered weekly visits for James and Les, on different days. To accommodate Les’s plans to spend a month
in Spain, the court ordered visits for Les on the ensuing Friday evening and
Sunday afternoon; and regular weekly visits upon her return from Spain.
September
28, 2010
For the hearing on September 28,
Dale submitted a declaration in which she stated that Clay is irritable and
upset when he returns from visits with appellants. In other declarations, counsel for appellants
and Les accused PVP attorney Marvan of being biased against appellants. James’s declaration stated that Clay told him
he does not like living in Venice, does not “feel comfortable around the blacks
and Mexicans, and that he has no friends.â€
Marvan reported that while he was in Truckee, Clay left a voice mail
message for Marvan stating that he (Clay) wanted to move back to the
mountains. On September 14, Clay
called Marvan and said he did not want to see his father anymore. Marvan received an incomplete substitution of
attorney form, which appeared to be signed by Clay. Marvan asked the court to speak with Clay in
chambers regarding Clay’s current desires on visitation and substitution of
attorney.
Clay appeared with Marvan at the
hearing. In response to the court’s
inquiry, Clay stated that he would be more comfortable talking to the court in
a separate room. Without objection from
the parties, the court went into chambers with Clay, Marvan, appellants’
attorney and the Probate Investigator Frank Cowan (Investigator Bowin was not
available); Dru, who was representing herself, was not represented in the
meeting. Clay said he did not want to
change attorneys. Given a choice between
Truckee and Venice, he wanted to live in Venice. Clay liked living in Southern California
because he liked doing things with Dru and Harris. Clay preferred Dru over Les as his
conservator; he did not want Les to be his conservator, or his
coconservator. The person Clay most
enjoyed spending time with was Harris.
Clay wanted to visit with Les and his father. Clay reluctantly agreed that James could join
the meeting in chambers on the condition that there was someone to protect Clay
if James “gets up and wants to swing a fist or anything like that.†In James’s presence, the court asked Clay
once again whether he wanted to live in Truckee or Venice near the beach. Clay responded, “By the beach.†When James asked Clay whether he wanted to go
up to Truckee, Clay responded, “I like living down here.†Clay repeated, “Just to answer the
question. I like living down here.†James and Clay engaged in the following
colloquy: “[JAMES]: . . . Who would you rather be with? [¶] [CLAY]: I like being with Dru. I like being with Dru. That was your statement to your question
which you answered, and I gave you the answer to your statement. [¶]
. . . [¶]
[JAMES]: My question is would you
rather be with Les or Dru the rest of your life? [¶]
[CLAY]: Dru. [¶]
[JAMES]: You rather be with
Dru? [¶]
[CLAY]: Dru. [¶]
[JAMES]: Okay. Fine.â€
Back in open court, the court made
the following order orally on the record:
“I think there is more than sufficient evidence for the court to make
the appropriate findings and make this conservatorship permanent. If there was any influence that was exerted
on Clay today, it was by [James]. Nobody
else exerted any pressure on him, and that would be not only in chambers but
also in the courtroom. So I’m wholly
satisfied that what Clay has expressed are his true desires and I don’t believe
he’s being influenced by anybody to say what he said in court. If anything, [James] was offering him a
significant sum of money to move back to Truckee. He did that in chambers, and he repeated it. It wasn’t once. It wasn’t just the one time that he made that
comment, and there were other things he was offering as well. [¶]
Clay became agitated and clearly was becoming visibly upset when he said
‘I want to stay with Dru’ and I think it’s time for us to make Clay feel safe, make
Clay feel comfortable, that that’s not going to change at this point and I want
to continue the visitation.†The court
added, “I just think that we need to make this conservatorship permanent and
not have the specter of a possibility of change looming ahead.†The court denied without prejudice
appellants’ petitions to have Dru removed and themselves appointed Clay’s
coconservators. It granted Dru’s
petition to modify visitation. Minute
orders reflecting the court’s orders were filed that day. Appellants timely
appealed.
DISCUSSION
Notice
of Trial Was Sufficient
Appellants contend they did not
receive the statutorily mandated 15 days notice of the September 28 trial on
the petitions. They argue that the matter was set for a
status hearing on September 28, not a trial.
The record is to the contrary.
The petitions for removal and
appointment of appellants as coconservators came on for hearing on August
3. The court initially expressed
optimism that it could resolve everything that day. After discussing a new visitation schedule,
the court stated that it would put the matter over until September 28 “just for
review to see how the visits are going and that will give us time for [Les] to
get back . . . and get some of her visits in, and I’ll find out how it’s
going. And if we need to make any
changes, tweak it some way and make it more workable, we can talk about it
then.†The court later stated that
appellants’ petitions were continued to September 28. On September 1, appellants’ counsel signed an
Order After Hearing, drafted by PVP attorney Marvan, which states that on August
3 “the Petitions for Removal of Conservator and for Appointment of Successor
Conservator are continued to September 28, 2010 . . . .â€
stated, “We’re here for trial. What are
we going to do?†Appellants’ counsel did
not object to the matter proceeding to trial.
The trial court made several similar statements throughout the hearing
all without objection from appellants.
This record shows that appellants
had notice that their petitions were going to be heard on September 28. Even assuming that on August 3 appellants
believed that September 28 would be nothing more than a status conference to
review how visitations were going, they did not object to a written order that stated
their petitions would be heard on September 28, and they did not object on
September 28 to the matter proceeding as a hearing on those petitions. As such, they waived the issue on
appeal. (See In re Gonzales (1966) 246 Cal.App.2d 296, 302 [presence and
participation in trial constitutes a waiver of written notice of the time and
place of trial].)
B.
Denial
of the Request to Continue the September 28 Hearing Was Not an Abuse of
Discretion
Appellants contend the trial
court’s denial of their request to continue the September 28 hearing so that
Les could be present was an abuse of discretion. We disagree.
Les was present at the hearing on
August 3, 2010, when the court stated that it had planned to set a review
hearing in 30 days, but would instead set it in 60 days, on October 6, to
accommodate Les’s planned trip to Spain.
In response to James’s request for an earlier hearing date to
accommodate his own travel plans, the court selected September 28. Appellants did not object to that date. Nor did appellants object when the court said
that the hearing on their petitions was continued to September 28, or to the written order signed by appellants’
counsel on September 1. James and
appellants’ counsel appeared at the hearing on September 28; Les did not. Before the in-chambers interview with Clay,
appellants did not request a continuance.
After speaking to Clay in chambers, the parties reassembled in the
courtroom. Only then, in response to the
trial court’s inquiry as to whether appellants had any more evidence to
present, appellants’ counsel stated, “We did want to have Les Wagner present,
and she is not here. I had a few
questions for [the probate investigator].â€
Appellants requested at the hearing a 45- or 60-day continuance before
the court made a permanent order. The
trial court denied the request for continuance, observing that at the last
hearing (at which Les was present), the court stated its intention to resolve
the issue.
Under
these circumstances, the trial court did not abuse its discretion in denying
the request for a continuance.
Appellants had multiple opportunities before the hearing to request a
continuance on the grounds that Les would not be available. By not doing so, appellants waived Les’s
appearance at the hearing.
The
Court’s Ex Parte Communications Did Not Deny Appellants Due Process
Appellants contend they were denied
due process as a result of three ex parte
communications with the court: (1) on
July 13, 2010, PVP attorney Marvan filed a “Confidential†report that was not
served on appellants; (2) on August 3, 2010, the trial court interviewed Clay
in chambers, outside the presence of the parties and their attorneys, but in
the presence of Marvan and Probate Investigator Bowin; and (3) on September 28,
2010, the court spoke briefly to Clay in chambers, outside the presence of the
parties and their attorneys, but in the presence of the Marvan and Probate
Investigator Cowan. We find no error.
We begin with the standard of
review. In conservatorship proceedings, ex
parte communications are governed by Probate Code section 1051, which
generally precludes such communications.
Whether the trial court properly applied section 1051 to the facts
of this case is a mixed question of law and fact. Because resolution of the issue requires a
“critical consideration, in a factual context, of legal principles and their
underlying values, the question is predominantly legal and its determination is
reviewed independently.†(
San Francisco (1989) 49 Cal.3d 881, 888.)
In proceedings under the Probate
Code, California Rules of Court, rule 7.10(a)(6) defines an “[e]x parte
communication†as a “communication between any party, attorney, or person in a
proceeding under the Probate Code . . . and the court outside
the presence of all parties and attorneys, including written communications
sent to the court without copies having been provided to other interested
persons.â€
rule has two exceptions. The first
exception is by stipulation. (§ 1051, subd. (a);
rule 7.10(b)(1).) The second
exception is set forth in subdivision (b) of section 1051, which allows
the court to “refer to the court investigator or take other appropriate action
in response to an ex parte communication regarding†a person who is the subject
of a conservatorship.
Rule 7.10(c)(2) explains that the court may consider ex parte
communication about a conservator’s
performance of his or her duties.
“Any action by the court pursuant to [section 1051, subdivision
(b)] shall be consistent with due process and the requirements of this
code. The court shall disclose the ex
parte communication to all parties and counsel.
The court may, for good cause, dispense with the disclosure if necessary
to protect the . . . conservatee from harm.†(§ 1051,
subd. (b); rule 7.10(c)(3) [court must fully disclose ex parte
communication and any response made by the court to all parties and their
attorneys except for good cause].)
Here, for the July 13, 2010
hearing, Marvan filed a letter from the Westside Regional Center attached to a
caption sheet marked “Confidential.†The
letter stated that the Hope Adult Care residential facility in Hawthorne,
California had accepted Clay for the period beginning July 13 and ending
October 13, 2010, and it described the services that would be available to Clay
at this facility. Because the letter was
not served on the parties, it was an ex parte communication. However, the fact that Clay had been accepted
into a residential facility for a 60- to 90-day period and whether that or some
other “neutral setting†was better to accomplish the goal of removing Clay from
all possible sources of undue influence, was the focus of much of the July 13
hearing. Thus, the court complied with
the section 1051, subdivision (b) requirement that it “disclose the ex
parte communication to all parties and counsel.â€
We also find no merit in appellants
challenge to the court’s interviews with Clay on August 3, 2010, and September
28 – also an ex parte communication. As
demonstrated by the following, on July 13 appellants stipulated to this
procedure: “THE COURT: Could we arrange for [Clay] to go to Truckee
for a couple weeks?
[¶] . . . [¶] . . . My
order is that no family members have any contact with him. Mr. Marvan, what would you think about
that? [¶] [MARVAN]:
That is perfectly fine with me.
The only coordination issue would be how he would come to court from
there. [¶] THE COURT:
Maybe Miss Franklin [(the person with whom Clay was going to stay while
in Truckee)] would be willing to ‑‑ a Greyhound bus. [¶]
[LES]: She would be more than
willing. [¶] [MARVAN]:
That is fine. I would ask ‑‑
I don’t know how we are going to get independent other than just having Clay
come in and testify. [¶] THE COURT:
I am okay with that. That is what
I would do, is I would meet with [Marvan and Clay] in chambers, if that is
agreeable with everybody else.
[James]? [¶] [JAMES]: Will my attorney be with
you? [¶]
THE COURT: No. It will be me and Mr. Marvan. Is that okay with you? [¶]
[APPELLANTS’ COUNSEL]: No
problem, Your Honor. [¶] THE COURT:
[Les]? [¶] [LES]:
Yes, that is fine. [¶] THE COURT:
[Appellants’ counsel]? [¶] [APPELLANTS’ COUNSEL]: Yes, Your Honor. [¶]
THE COURT: [Dru]? [¶]
[DRU]: Certainly I prefer it just
be you. [¶] THE COURT:
. . . I would require Mr. Marvan to be part of it, and he is
Clay’s attorney. Any objection to
that? [¶] [DRU]:
No.†Because appellants’
stipulated to the ex parte communication on July 13, section 1051,
subdivision (a) was satisfied. Moreover,
immediately following that interview, the court disclosed the substance of the
meeting to the parties in open court in compliance with section 1051,
subdivision (b). Likewise, following its
ex parte communication with Clay on September 28, the court disclosed the
substance of that interview: “[T]he
reason that I had a brief meeting with Clay, Mr. Cowan and Mr. Marvan
before this [meeting in the presence of appellants’ counsel] was just to get
Clay acclimated, to introduce him to Mr. Cowan, and to get him comfortable with
the environment. And then we talked a
little about changes, preferences for what he likes to do and who he spends time
with, and then we invited [appellants’ counsel] in.†This, too, satisfied section 1051,
subdivision (b).
The
Trial Court Did Not Err in Admitting Evidence of Clay’s Desire for Dru to
Remain His Conservator
As we understand appellants’
contention, it is that the trial court erred in admitting evidence of Clay’s
stated preference for Dru to remain his conservator for two reasons: (1) Clay was so susceptible to undue
influence as to make his stated preference irrelevant; and (2) Clay was not
placed under oath before he spoke to the court in chambers. We find no merit in either contention.
1.
Clay’s Wishes Are Relevant
We begin with the standard of
review. Determination of whether
evidence is relevant is left to the “sound discretion of the trial court, and
the exercise of that discretion will not be reversed absent a showing of
abuse. [Citations.] That discretion is only abused where there is
a clear showing the trial court exceeded the bounds of reason, all of the
circumstances being considered.†(
38 Cal.App.4th 1, 32.)
Relevant evidence is evidence
having “any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.†(Evid. Code, § 210.) Only relevant evidence is admissible. (§ 350.)
Except as provided by statute, all relevant evidence is admissible. (§ 351.)
The court’s selection of a
conservator must be guided by “what appears to be for the best interests of the
proposed conservatee.†(Prob. Code,
§ 1812, subd. (a).) It is hard
to imagine how the conservatee’s wishes are not a relevant consideration to the
determination of his or her best interests.
That this is so is implicit in several statutes. For example, section 1810 provides that, if the conservatee has nominated a
conservator in a signed writing, the court “shall appoint the nominee as
conservator unless the court finds that the appointment is not in the best
interests of the proposed conservatee.â€
(See Conservatorship of Ramirez (2001)
90 Cal.App.4th 390, 403 [appointment of professional conservator was not
in convervatee’s best interest where there was evidence she nominated her
son].) Even without a signed writing,
the Probate Code makes clear that the conservatee’s wishes matter. For example, section 1826, subdivision (f) directs the court-appointed
investigator to determine whether the conservatee objects to the proposed
conservator or prefers another person to be appointed conservator. And section 1828, subdivision (b)(2)
provides that the court must consult the conservatee to determine his or her
opinion concerning the appointment of the proposed conservator. Clay’s susceptibility to undue influence goes
to the weight of that evidence, not its admissibility.
2.
Appellants Waived Any Objection That Clay Was
Not Placed Under Oath
Evidence Code section 710
reads: “Every witness before testifying
shall take an oath . . . except that a . . . dependent
person with a substantial cognitive impairment, in the court’s discretion, may
be required only to promise to tell the truth.â€
Absent evidence in the record that a witness has been sworn, we must
assume that the court officer performed his or her duty and that the witness
was sworn. On appeal, it is the
appellant’s burden to prove that the witness was not sworn. Moreover, absent a timely objection to the
lack of administration of the oath, the issue is waived on appeal. (People
v. Carreon (1984) 151 Cal.App.3d 559, 579-580.) Here, even assuming Clay was neither sworn
nor did he promise to tell the truth when interviewed by the court, appellants’
failure to timely object on this ground constitutes a waiver of the issue on
appeal.
E.
Denial
of Appellants’ Petitions to Remove Dru and Have Themselves Appointed Clay’s
Coconservators Was Not an Abuse of Discretion
Appellants contend the order that
Dru continue as Clay’s conservator was not supported by substantial
evidence. They argue that the trial
court did not give sufficient weight to the fact that Dru was twice found in
contempt or Dr. Read’s Evidence Code section 730 report, and did not
determine whether Clay was competent to testify. We find no error.
We begin with the standard of
review. In a conservatorship case, like
in any other, the weight to be given to any evidence is for the trier of fact
to decide. (See, e.g.,
25 Cal.App.4th 502, 509 (McKeown)
[trier of fact may reject even uncontradicted testimony of an expert
witness].) However, the ultimate
selection of a conservator is in the discretion of the court, which must be
guided by “what appears to be for the best interests of the proposed
conservatee.†(Prob. Code, § 1812, subd. (a).) Accordingly, we are ultimated guided by the
abuse of discretion standard, not the substantial evidence standard urged by
appellants. But under either standard,
we would find no error.
First, as to the weight given to
the contempt finding, Probate Code section 2655, subdivision (a) allows
the court to remove a conservator upon a finding that he or she is in contempt
for violating a court order, but the statute does not require the court to do
so. Here, the same trial judge found Dru
in contempt of two visitation orders and subsequently denied the petition to
remove Dru and appoint appellants Clay’s coconservators. It would be metaphysically impossible for
that judge to not have reasonably considered its prior order in deciding the
petitions. To the extent appellants
challenge the weight the judge gave to its prior orders, such was for the trier
of fact, here the trial court, to decide.
Second, as with other evidence, the
weight to be given an Evidence Code section 730 evaluation is for the
trier of fact to decide. (
p. 509.) In this case, the trial court
was not required to find decisive Dr. Read’s opinion that Clay’s expressed desires
should not be credited because Clay was so easily influenced. Rather, it was simply one piece of evidence
for the court to consider. The weight to
be given that piece of evidence was for the court to decide.
Finally, appellants do not explain
what they mean by “competent to testify.â€
According to Penal Code section 1367, a criminal defendant “is
mentally incompetent . . . if, as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner.†Nothing in the record
suggests that Clay was unable to comprehend that the issue in the
conservatorship proceedings was where and with whom he would live going
forward. Moreover, appellants never
challenged Clay’s competence.
Appellants’
Request for a Statement of Decision Was Not Adequate
Appellants contend the judgment
must be reversed because the trial court did not issue a statement of decision
as they requested pursuant to Code of Civil Procedure section 632. We disagree.
Except to the extent that the
Probate Code provides applicable rules, the rules of practice applicable to all
civil actions apply to proceedings under the Probate Code. (Prob.
Code, § 1000.) This includes Code of Civil Procedure
section 632, which provides: “The
court shall issue a statement of decision explaining the factual and legal
basis for its decision as to each of the principal controverted issues at trial
upon the request of any party appearing at the trial. The request must be made within 10 days after
the court announces a tentative decision unless the trial is concluded within
one calendar day or in less than eight hours over more than one day in which
event the request must be made prior to the submission of the matter for
decision. The request for a statement of
decision shall specify those controverted issues as to which the party is
requesting a statement of decision. . . . [¶]
. . . [W]hen the trial is concluded within one calendar day or
in less than 8 hours over more than one day, the statement of decision may be
made orally on the record in the presence of the parties.†(See, e.g., Estate of Exterstein (1934) 2 Cal.2d 13, 15-16; see also
But absent a request that states
with specificity the issues on which the party is requesting a statement of
decision, the trial court has no duty to issue such a statement. For example, in Conservatorship of Hume (2006) 140 Cal.App.4th 1385, the
petitioner made the following written request for a statement of decision: “[Petitioner] requests a statement of
decision upon each of the principal controverted issues at trial on the
above-captioned proceeding. Such issues
whose decisions are asked to be stated include any propositions of fact or law
set forth in any of the pleadings or trial briefs in this proceeding, as well
as any issues that are raised by any other means at any time through
trial.†(Id. at p. 1394, fn. 15.)
The appellate court found the request did not identify with sufficient
specificity the issues the petitioner wanted addressed. (Id.
at p. 1394; see also In re Marriage
of Falcone & Fyke (2012) 203 Cal.App.4th 964, 981-982.)
Here, appellants’ purported request
for a statement of decision appears in paragraph 31 of appellants’ counsel’s
declaration filed the day before the September 28 hearing. It reads:
“Petitioners request this Court make its Statement of Decision under CA
Code of Court Procedure Sec. 632, as to all controverted issues in this
matter.†This request does not have the
specificity required by Code of Civil Procedure section 632. Accordingly, the trial court had no duty to issue
a section 632 statement of decision.
The
September 28, 2010 order is affirmed.
Clay shall recover his costs on appeal.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
avoid confusion, we refer to Clay, his
father (appellant James) and four sisters (Valerie, Dale, appellant Les and
Dru) by their first names. Valerie and
Clay’s only brother (Mark) are now deceased.
People v. Karriker (2007) 149
Cal.App.4th 763, 774, for an explanation of the difference between a Probate
Code section 1800 et seq. conservatorship and a Welfare and Institutions
Code section 5000 et seq. conservatorship.
