Guardianship of Nagel











Filed 9/29/10 Guardianship of Nagel CA4/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






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Guardianship of the Estate of Peter Alexsander Nagel, A Minor.
Penelope Nagel, Petitioner and Respondent, v. Thomas M. Davidson, Contestant and Appellant.	D055998 (Super. Ct. No. 37-2009-00151162-PR- GE-CTL)

APPEAL from
an order of the Superior Court
of San Diego
County, Julia C. Kelety, Judge. Affirmed.



Douglas
Davidson (Father) died when his son, Peter, was 19 months old. At the time, Father was living with Peter's
mother (Penelope Nagel (Mother)), but they were not married. Because Peter was potentially entitled to
inherit under Father's will, Mother petitioned to be appointed guardian of
Peter's estate. Peter's paternal
grandfather, Thomas Davidson (Grandfather), opposed Mother's petition on
numerous grounds. After conducting a
hearing, the court found Mother's appointment as guardian of her son's estate
was appropriate and justified.

Grandfather
appeals from the order appointing Mother as guardian of her son's estate. He contends the court erred in appointing
Mother without an evidentiary hearing, and denying him a 60-day continuance to
permit him to conduct discovery. We conclude
Grandfather waived his right to seek an evidentiary hearing, and the court did
not abuse its discretion in denying the continuance. We also reject Grandfather's contention that
the court applied incorrect legal
standards.

FACTUAL
AND PROCEDURAL BACKGROUND[1]

Peter was
born in May 2007. At the time, Father
and Mother were living together and were engaged to be married. In September 2007, Father executed a
Declaration of Paternity, acknowledging he was Peter's father. More than one year later, in January 2009,
Father died of a sudden illness. Father
was 45 years old at the time of his death.


About six
weeks after Father's death, Grandfather filed a petition for probate of
Father's will, seeking to be appointed as executor. The attached will, executed 20 years earlier
in Connecticut, named Father's sister Anne as executor and sole beneficiary,
and appointed Grandfather as executor if Anne was unwilling or unable to serve
in that capacity. Anne later declined to
serve as executor. Because the will did
not name Peter or disinherit Father's unborn children, Peter became the primary
beneficiary of Father's estate by operation of law. (See Prob. Code, § 21620.)[2]

Several
weeks later, in March 2009, Mother petitioned to be appointed guardian of
Peter's estate. Mother alleged the appointment
was necessary because Peter would be receiving an inheritance through Father's
probate estate. In support, she filed a
Judicial Council confidential guardianship screening form and the superior
court's guardianship questionnaire, and provided information on the forms about
her personal background and financial status.
She signed the forms under penalty of perjury. Based on the information provided on the
forms, Mother indicated she had no potential risk factors pertaining to the
proposed guardianship, and that she would use Peter's funds inherited from
Father's estate solely to benefit Peter.
The court granted Mother temporary letters of guardianship conditioned
on a $20,000 bond.

Mother also
filed an objection to Grandfather's petition seeking to be appointed as
executor of Father's will and requested the court to appoint a professional
administrator. Mother argued that
Grandfather had failed to acknowledge Peter as Father's child and engaged in
numerous hostile acts against her, including restricting her hospital visits
with Father and improperly removing items from Father's safe deposit box and
storage unit.

On April
16, Grandfather responded by requesting genetic testing to confirm that Peter
was Father's son, and to set aside Father's written declaration of paternity
pending the testing.

The next
day, Grandfather filed an objection to Mother's petition to be appointed
guardian of Peter's estate and sought a continuance of the matter pending a
determination of Father's paternity. Grandfather
argued the guardian issue was not yet "ripe" because there had been
no determination whether Peter was Father's biological son. Grandfather also claimed Mother was
"unfit" to serve as guardian of Peter's estate. He alleged he is "informed and believes . . . that
[Mother] is mentally and emotionally unstable; she has, in the past, had drug
addiction issues; she is a debtor of the decedent's estate; and she is
insolvent financially and has insufficient income to support herself and her
two children." Grandfather stated
that if Peter is determined to be Father's biological son, the court should
appoint a neutral qualified professional fiduciary to be the guardian of
Peter's estate.

Five days
later, on April 22, the court held a hearing on Mother's guardianship
petition. At the hearing, the court
continued the matter for two additional months and scheduled a hearing on
Mother's guardianship petition for June 23.
The court also ordered Mother's temporary letters of guardianship to be
extended until the June 23 hearing.

Grandfather
thereafter filed a reply to Mother's opposition to his appointment as executor
of Father's estate, arguing there were no grounds disqualifying him from
serving as executor. In his supporting
declaration, Grandfather denied Mother's assertions that he had acted
improperly with respect to Father's property, and stated that Mother
"freely and frequently visited" Father in the intensive care unit,
but the day before Father's death, she was escorted out of the hospital by security
officers because she and Grandfather had a loud argument in Father's room while
he was in a coma.

In her
response to Grandfather's petition to set aside the declaration of paternity,
Mother described Father's close parent-child relationship with Peter and his
voluntary decision to sign the Declaration of Paternity. Mother also filed a lengthy and detailed
reply to Grandfather's declaration in support of his motion to be appointed
executor. In the reply, Mother denied
Grandfather's claims that she was given unlimited access to Father's hospital
room and restated her claims that Grandfather acted inappropriately with
respect to Father's property. Mother
also discussed the history of her relationship with Father, and the substantial
conflicts with Grandfather that developed once Father became ill in December
2008.

On June 23, 2009, the court held a
hearing on: (1) Grandfather's petition
challenging Father's declaration of paternity; (2) Mother's petition to be
appointed guardian of the estate of her minor son; and (3) Grandfather's
petition to be appointed executor of Father's estate.

At the
outset of the hearing, the parties informed the court that the genetic tests
had been performed and Father's paternity had been confirmed, and Grandfather
had thus withdrawn his paternity challenges.
The court then proceeded to address the merits of Mother's guardianship
petition, noting that Mother's temporary letters of guardianship expired that
day. After Mother's counsel indicated
she had nothing to add to the written petition, the court asked Grandfather's
counsel about Grandfather's objections.
Grandfather's counsel responded that he "would actually like to
request that . . . this hearing be continued for 60 days
and that at that time a status hearing be held," and "in the
meantime . . . we'd like to conduct additional
discovery," including taking Mother's deposition on the issue of Mother's
fitness to serve as the guardian of her son's estate.

The court
responded: "[C]an you be more
specificâ€