Conservatorship of Karnazes
Filed 2/22/13 Conservatorship of Karnazes CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
Conservatorship
of the Estate of ZACHARY KARNAZES.
ELIZABETH
KARNAZES,
Petitioner and Appellant,
v.
ZACHARY
KARNAZES,
Objector and Respondent.
A131920
(San Mateo County
Super. Ct. No. PRO120540)
Elizabeth
Karnazes (appellant) appeals from a judgment denying her petition for a
conservatorship over her son Zachary Karnazes’s (respondent) estate. She contends:
(1) the court erred in denying her request for a continuance of the
hearing on the petition; and (2) her attorney engaged in
appellant “should be relieved of the consequences of [her] attorney[’s]â€
actions. We reject the contentions and
affirm the judgment.
Factual and Procedural Background
On
October 14, 2010, appellant filed a petition for appointment of a
conservatorship of the estate of respondent on the ground that he suffers from
various disorders and was in need of assistance in managing his finances, among
other things. The court appointed a
court investigator, and a hearing on the petition was scheduled for
December 1, 2010. On
November 23, 2010, a written request was made to the court to “continue
the hearing . . . currently scheduled for December 1 to
March 4 . . . .â€
2011. On February 24, 2011,
respondent filed objections to the petition, declaring, among other things,
that he was “not remotely a candidate for conservatorship of the estateâ€
because he was a “bright, articulate 24 year old who ha[d] lived independently
for several years†and had “manage[d] his finances and . . . secured
public benefits to sustain him during his physical disability.†He declared that appellant, from whom he was
estranged due to financial and other
issues that had arisen between them, had filed the petition “simply
. . . so that she [could] exercise control over him.â€
Respondent
and his attorney appeared at the March 4, 2011 hearing. Appellant did not appear personally but her
attorney appeared on her behalf. The
court raised several concerns about the petition, including the fact that the
medical examination on which it was based was “stale†and that a “new
declaration on file from [another] doctor . . . [was] quite to the
contrary.†Appellant’s attorney
requested an “in chambers†meeting to explore settlement possibilities, or, in
the alternative, a continuance. He
further stated, “My client believes there [are] numerous false statements made
to the court investigator, which could have an impact upon [the court’s] view
of the matter.†Respondent’s attorney
objected to a continuance, stating that a continuance “would not be productiveâ€
and that “any inaccuracies in the investigator’s report [were] irrelevant to
the matter at hand, which [was] that [respondent] . . . [did] not
meet the legal standards for a conservatorship.†Appellant’s attorney responded that his
client believed a conservatorship was necessary because respondent was incapable
of handling his finances properly. The court
asked respondent how he was doing, and respondent replied he was “doing
reasonably well, considering the circumstances.†Respondent elaborated further about his
status and the reasons he believed his mother was seeking a conservatorship
over his estate.
The
court stated, “many aspects of this [petition] are disturbing to the
court. I agree we need closure, and I
intend to provide it today.†The court
denied the request for a continuance, stating, “this needs to be resolved
today.†As to the merits, the court
stated it had “no doubt that [respondent] does not meet the legal standards for
a conservatorship†and that the evidence, which “shows that he has capacity to
make informed decisions in his own best interests,†was “certainlyâ€
insufficient to “meet the standard of clear and convincing evidence which is
required by the court to make a binding determination.†The court denied the petition.
On
March 15, 2011, appellant filed a “notice of motion and motion for
reconsideration and review†on the grounds that she would “suffer irreparable
harm if [the order] . . . in this matter remains,†“there are new or
different facts, circumstances, or laws unknown to the court on the date of
hearing in this matter,†and “good cause exists . . . .†The record on appeal does not contain any
other documents related to the motion for reconsideration, or an indication as
to how the court ruled on the motion.
However, a minute order from a July 13, 2011 hearing on the motion
for reconsideration shows the court denied the motion.
Discussion
Appellant
contends the judgment must be reversed because the court erred in denying her
request for a continuance. For the first
time on appeal, she asserts she had a right to a mandatory continuance under a
local rule of court, which provides:
“The attorney of record, or petitioner in pro per, will be allowed to
continue conservatorship and guardianship matters twice
. . . .†(Super. Ct. San
Mateo County, Local. Rules, rule 4.1.)
She also sets forth a number of reasons—which she did not present
below—as to why she believes there was good cause for a continuance. We need not, and therefore will not, decide
whether the local rule created a mandatory right to a continuance, or whether
there was good cause for a continuance, because in any event, appellant failed
to show she was prejudiced.
Trial
courts generally have broad discretion in deciding whether to grant a request
for a continuance. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389,
1395.) Although some statutes make
continuances mandatory and, therefore, divest the trial court of its usually
broad discretion, (see, e.g., Ross v.
Figueroa (2006) 139 Cal.App.4th 856, 864 [mandatory continuance under Fam.
Code, § 243]), the denial of a request for a continuance—whether mandatory
or discretionary—results in reversible error only when the denial prejudices a
party. (In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 155,
superseded by statute on other grounds as stated in In re Marriage of Braud (1996) 45 Cal .App.4th 797, 811,
fn. 14.) There is no presumption of
prejudice. (Cal. Const., art. VI,
§ 13; Code Civ. Proc., § 475.)
Rather, the burden to demonstrate prejudice is on the appellant. (Arnett
v. Nall (1921) 51 Cal.App. 194, 195.)
We
see nothing to suggest there was a miscarriage of justice in this case. In explaining why there was good cause for a
continuance, appellant points out she was unavailable to personally appear at
the hearing due to a scheduling conflict, and suggests that if she had been
there, she would have presented evidence to show she had acted in respondent’s
best interests. For example, she states,
“[Appellant] will seek to introduce evidence in this matter that proves [respondent’s
attorney] knew [appellant] had made multiple efforts to meet with [respondent]
. . . to establish an appropriate method of releasing the settlement
proceeds to [respondent] . . . .†Whether appellant breached her fiduciary duty
to respondent as his attorney, however, was irrelevant to the court’s inquiry
of whether respondent had the capacity to handle his finances, i.e., whether a
conservatorship was necessary. Appellant
also suggests there was a miscarriage of justice because she had “no time to respond
and object to the [court investigator’s report].†However, she has failed to provide us with a
copy of the report and does not indicate which statements she would have
challenged, or what impact any inaccuracies would have had on the court’s finding
that a conservatorship was not necessary.
Finally, she intimates that she would have called witnesses if the
matter had been continued, stating, “In justifiable reliance [on] the advice
given to her by her attorney, . . . [appellant] also advised her
witnesses that the hearing would be continued to another date and time.†However, she does not explain what any of the
witnesses might have said that would have resulted in a different outcome. Appellant has failed to meet her burden of
showing prejudice.
Appellant
contends her attorney engaged in “positive
misconduct,†such that appellant “should be relieved of the consequences of
[her] attorney[’s]†actions. Without
citation to the record, and for the first time on appeal, she sets forth facts
she believes show that her attorney engaged in egregious misconduct. Even assuming, without deciding, that she has
preserved this issue for appeal, we conclude the contention is without merit.
Citing
Carroll v. Abbott Laboratories, Inc.
(1982) 32 Cal.3d 892, 898, for the proposition that an attorney’s “neglect
. . . of [an] extreme degree amounting to positive misconduct
. . . should not be imputed to the client,†appellant argues the
judgment must be reversed because her attorney “effectively abandoned†her by,
among other things, “failing to inform the court that [she] was entitled to a
mandatory continuance†and “failing to inform the court that [appellant] could
not attend the hearing due to a conflict which mandated her appearance in
another court on another matter . . . at the same time.†The record shows, however, that appellant’s
attorney appeared at the hearing on her behalf and argued for either a chambers
conference or a continuance, informed the court that there were inaccuracies in
the court investigator’s report, and asserted that a conservatorship was
necessary because respondent was incapable of handling his finances
properly. Although he may not have
raised all the arguments and facts appellant wished for him to raise, nothing
in the record supports any inference that counsel abandoned her or otherwise
failed to represent her interests in a way that would have constituted
misconduct.
Moreover,
appellant has failed to show she was prejudiced in any way. She has not presented any facts to support a
conclusion that, but for her attorney’s actions, she would have obtained a more
favorable result. (See Cal. Const.,
art. VI, § 13 [judgment will not be reversed absent a showing of
prejudice]; Code Civ. Proc., § 475 [same].)
Disposition
The
judgment is affirmed. Respondent shall
recover his costs on appeal.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
individual named Suzanne Staples. It is
unclear from the record who this is.
attorney, represented him in several personal injury actions when he was a
minor and obtained settlements on his behalf.
When appellant refused to release the settlement funds to him despite
numerous requests, respondent filed a State Bar complaint against her. Respondent believed appellant had filed the conservatorship
petition “in retaliation†and in order to “stay the Bar investigation pending
the resolution of the conservatorship proceeding, so that she could continue to
wrongfully retain [his] settlement funds.â€
On appeal, appellant denies these claims and states she “objects to the
. . . deceitful and misleading factual contentions†that have been
made in order to “portray [her] as a vengeful, controlling villain, who refused
to release [respondent’s] settlement funds and refused to supply proof that
said funds were in [her] attorney-client trust account.â€
