Stevens v. Stevens

Filed 10/14/09 Stevens v. Stevens CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Margaret L. Oldendorf, Judge. Dismissed.

Law Office of Kathryn M. Davis and Kathryn M. Davis for Plaintiff and Appellant.

Law Office of Sandee L. Chadwick and Sandee L. Chadwick for Defendant and Respondent.

____________________

Plaintiff and appellant Halette Stevens (Halette)^[1]appeals from a trial court order sustaining the demurrer of defendant and respondent Charles Stevens (Charles) without leave to amend and dismissing Halettes claims brought pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, 15600 et seq.). The issue presented is whether an interested person (Welf. & Inst. Code, 15600, subd. (j)) may commence or maintain an elder abuse claim on behalf of a living elder for whom a conservator has already been appointed. According to Halette, she is an interested person (Welf. & Inst. Code, 15600, subd. (j)) who may commence or maintain an elder abuse claim on behalf of her mother, Helene Stevens (Helene), while her mother is alive, even though a conservator had been appointed for Helene. According to Charles, only the conservator could bring such an action; Halette, as an interested person, could not file an elder abuse claim until after Helene passed away. (Welf. & Inst. Code, 15657.3, subd. (d)(2).)

While this appeal was pending, Helene passed away. On September 21, 2009, we sent a letter to the parties asking them to submit further argument on the following question: Does Helenes intervening death render the issue raised in this appeal moot? We received responses from both Halette and Charles.

After reviewing the issue carefully, we conclude that the question presented in this appeal has been rendered moot; because of events occurring subsequent to the making of the order from which Halette appealed, there is no longer an actual controversy between the parties. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 13151316; see also Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) 5:22, p. 5-6.) Any decision on this issue would be merely an advisory opinion, which we have no power to render. (See, e.g., People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912; Nowlin v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1529, 1539.) Pursuant to Welfare and Institutions Code section 15657.3, subdivision (d)(2), Halette may bring an elder abuse action on behalf of her mother. (See Estate of Lowrie (2004) 118 Cal.App.4th 220, 225231.) We need not decide whether Halette could have maintained an elder abuse action while Helene was alive.

Halette urges us to consider the issue presented in this appeal because it presents a significant issue of first impression and involves an issue of great public importance. Citing Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745746, fn. 3, Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168, 176, fn. 3, and several other cases, Halette argues that the issue is a matter of continuing public interest and is likely to recur. While we are sympathetic to matters relating to the abuse of the elderly, we are not convinced that the issue presented in this appeal is likely to recur. Halette had a remedy available to her while her mother was alive, namely she could have filed a petition to remove the conservator. (Prob. Code, 2650; see also Cal. Conservatorship Practice (Cont.Ed.Bar 2009) 13.6, pp. 622623; 21.10 to 21.13, pp. 11981203.) Thus, we decline to exercise our discretion and reach the merits of the issue raised. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, 5:32, p. 5-12.)

Accordingly, the appeal is dismissed.

DISPOSITION

The appeal is dismissed. Each party to bear its own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J.

BOREN

_____________________, J.

DOI TODD

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^[1] For convenience, we refer to the parties by their first names. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)