Conservatorship of Raymond Jack
Filed 9/18/13 Conservatorship of Raymond Jack 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opinion has not been certified for publication or ordered published for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 Person of RAYMOND JACK.
JOSEPH ROLANDO JACK,
Petitioner and Appellant,
v.
RAYMOND
JACK,
Objector and Respondent.
A136325
(City & County of San
Francisco
Super. Ct.
No. PCN-11-294489)
Petitioner
Joseph Rolando Jack appeals from orders of the probate court denying his
petition to appoint a probate conservator for the person and estate of his
father Raymond Jack (father) and to compel the deposition of father, and from
an order granting father’s motion to expunge a notice of lis pendens which the
petitioner filed against his father’s former home. By the time of the hearing
on these motions, father had moved with his new wife to Georgia
and petitioner construes the court’s order denying the conservatorship petition
as based on the erroneous view of the court that it had lost jurisdiction as a
result of the move. The probate court was under no such misapprehension. Its
orders reflect the well-supported conclusion that the appointment of a conservator
at that time was not justified.
name="_ftnref1" title="">[1]
Background
Petitioner
is the youngest of eight children born to father and his former wife of some 42
years, who died in 1995. In August 2010, father, then 76 years of age, married
Loretta Jack (Loretta). In his petition for appointment of a conservator, filed
on April 8, 2011,
title="">[2] petitioner alleged, among
other things, that Loretta, a then 51-year-old woman, “has preyed upon [father]
by feigning affection for [him] . . . . Loretta has isolated [father]
from his family. [Father] once had very close relationships with his children
and siblings. The relationships are broken. No one can stop by the house and
visit anymore. . . . Loretta has convinced [father] that she is the
only one who loves him and even recently married him. She has now convinced him
to sell the home he has lived in for all these years to move with her to
Georgia, away from his friends and family. She controls his bank accounts and
other assets. Prior to the marriage, she stole over $30,000.00. . . .
Loretta has now come along and taken advantage of [father’s] age, decline in
health and vulnerability.†The petition was supported by declarations from
several of father’s other children, to much the same effect. Because father had
indicated his intention to sell his family home and move to Georgia to live
near Loretta’s family, on April 11 petitioner filed a “Notice of Pendency of
Action,†claiming that the proposed conservatorship would affect title to the
home.
Father
promptly filed objections to the petition prepared by his personal attorney,
Gary R. Lieberman, who appeared on father’s behalf. When interviewed by a court
investigator, father advised the investigator that he did not wish to be
represented by court-appointed counsel since he was represented by Mr.
Lieberman. Nonetheless, the court appointed another attorney, Trisha
Friedeberg, to represent him and at an initial hearing before a court
commissioner, on June 30, 2011, the commissioner refused to recognize Mr.
Lieberman as father’s attorney. Hence, father, by Mr. Lieberman, filed a motion
to recognize Mr. Lieberman as his attorney in the matter. Petitioner opposed
the motion, but at a hearing on September 20, 2011, attended by father, the
court granted the motion and relieved Ms. Friedeberg as court-appointed
counsel.
In
anticipation of the initial hearing before the commissioner on June 30, 2011,
the conservatorship investigator submitted an extensive report pursuant to
Probate Code section 1826. The 19-page report sets forth, among other
relevant information, a thorough explanation of the background of the
proceedings and the information obtained in interviews with father, Loretta,
petitioner, and numerous other children and relatives of father. The interviews
revealed both the concerns of family members leading to the filing of the
conservatorship petition and corresponding grievances of father and Loretta
with most of father’s children. The investigator reported that during her
unscheduled visit with father, he “fully engaged in a private and lengthy
interview in his living room. He appeared appropriately dressed and correctly
recalled his date of birth and current date. He showed mild confusion about
specific dates, such as the current year and birth order of his younger
children. He seemed comfortably seated in an armchair where he was watching
television. The living room was clean, organized, and nicely furnished.
[¶] [Father] was alert and fully oriented as he listened to the
advisements regarding the proposed conservatorship and expressed objections to
it.†The investigator concluded that father “is a talkative gentleman who has
started a new stage in life with his bride . . . who seems to be
providing good care in the comfort of their home. Unfortunately, he no longer
maintains a close relationship with many of his family members due to his
desire to protect her from their disparaging remarks and behavior.
. . . [¶] There are allegations that some of [father’s] family
members have taken advantage of his generosity over the years. . . .
[¶] . . . [¶] At this time, there does not appear to be
sufficient information regarding the allegations of financial abuse and
caregiver neglect. . . . [¶] It seems that [father] is
overwhelmed with the various allegations against his new wife and the questions
about his decision-making capability. Although he seems to have a little
difficulty recalling dates and certain past events, he seems happy about his
care and living situation. He has denied the allegations of financial abuse at
the hands of his former girlfriend . . . and Loretta
. . . . [¶] Without a filed capacity declaration, there is
a lack of medical information to indicate that [father] suffers from cognitive
defects to the extent that he requires a conservatorship.â€
On
October 24, 2011, petitioner filed an ex parte application for an order
prohibiting father from moving to Georgia with Loretta. Father opposed the
motion. The record does not contain an order reflecting the court’s disposition
of the motion, but it is apparent from subsequent entries that the motion was
denied. On October 28, petitioner filed an ex parte application for an order to
compel father to return to California. The record on appeal also fails to
reflect the disposition of this motion but it is again apparent that the motion
was not granted.
On
January 10, 2012, after father had moved to Georgia and established permanent
residence there, petitioner filed a motion to compel father’s attendance at a
deposition. On February 28, father filed a motion to expunge the lis pendens
that petitioner had placed on father’s prior home, which was restricting
father’s ability to sell the property. Both motions came on for hearing at the
same time as the hearing on the petition to appoint a conservator, April 26,
2012. The court denied the petition to appoint a conservator and the motion to
compel father’s deposition. It granted the motion to expunge the lis pendens.
The
probate court’s order denying the petition for appointment of a conservator
provides the following explanation for the ruling: “The court considered the
report of the conservatorship investigator filed June 29, 2011. The
investigation confirms that Mr. Jack objected to the conservatorship and
objected to the conservator. No party has submitted a capacity declaration to
the court. Mr. Jack appeared at three hearings in this conservatorship
proceeding. Mr. Jack has consistently opposed a conservatorship. Petitioner’s
request to prohibit Mr. Jack from moving out of state was previously denied by
the court. There was no temporary conservatorship and Mr. Jack remained free to
determine his residence. Mr. Jack indicated his intention to move with his wife
to the State of Georgia and did so. The court investigator has confirmed that
Mr. Jack is residing in Georgia where he intends to remain. Counsel for
petitioner recently travelled to Georgia, is aware of Mr. Jack’s location and
residence, and confirmed at the April 26, 2012 hearing that she contacted Mr.
Jack. [¶] Any request to establish a conservatorship is properly brought
in the state where Mr. Jack resides. Although a citation was served, under
Probate C. § 2352, when a conservatorship has been granted, a probate
court has authority to fix the residence of a conservatee in another state. If
the residence is established in another state then the court may require that
proceedings be commenced in the place of new residence when the conservatee has
resided in the new place of residence for a period of four months or longer, or
a shorter period specified in the order. No conservatorship has been granted
but Mr. Jack wishes to reside in Georgia. This court has no basis to determine
that he should not be able to do so. Therefore, any proceedings for
conservatorship are properly brought in the state of Mr. Jack’s residence.
Hence, the petition for conservatorship is denied.â€
According
to petitioner, “the main issue in this case is whether the trial court had
jurisdiction over the matter even after the proposed conservatee
. . . was removed from the state by his abuser. The court never
reached the merits of the case due to proposed conservatee’s removal from the
jurisdiction the following day after service of a deposition subpoena on the
suspect.†Although a portion of the court’s order may be read to suggest that
the court believed that the conservatorship petition was not properly before
the court because at the time of the hearing father was no longer a resident of
California, this is not a fair reading of the order. The court did not question
its own jurisdiction to rule on the matter and in denying the petition it is
clear that it considered the merits of the petition.
The
court obtained jurisdiction by service of the petition and citation upon
father, and in all events jurisdiction was obtained by father’s appearance in
the proceedings. (Conservatorship of
Jones (1986) 188 Cal.App.3d 306, 309.) There is no question but that the
procedures applicable to conservatorship
proceedings were followed, including the preparation and submission of a
court investigator’s report as required by Probate Code section 1826. In
opposing petitioner’s motion to compel father to return to California for his
deposition, his attorney’s declaration, although asserting that the venue was
no longer proper, acknowledged the jurisdiction of the court and argued: “There
is absolutely no evidence that [father] is in need of a conservatorship. The
court investigation report makes such a finding. There was an adult protective
services investigation very early on in the case, which similarly found no
basis for petitioner’s allegations of elder abuse, and the case was summarily
closed. There are no less than three (3) medical reports which all indicate
that [father] is perfectly able to handle his own affairs and make heath care
decisions.â€
title="">[3] The court was neither
asked to, nor did it, dismiss the petition for lack of jurisdiction.
After
reviewing the results of the court investigator’s thorough investigation, the
court denied petitioner’s motion to prohibit father’s move to Georgia, either
denied or simply failed to grant the motion to require his return, and when the
petition finally came on for hearing in April 2012 reaffirmed its view that
father was not in need of a conservator and was entitled to make his own
decisions as to where to live, whether to sell his former home, and otherwise
to conduct his life as he saw fit. Based on all the information before it
concerning father’s then-current physical and mental condition, the court
denied the petition on the merits. Its order should be read to indicate that in
view of father’s change of residence, any future questions concerning the need
for a conservator must be brought in the courts of Georgia, where he now
resides.
In
view of the court’s findings and conclusions, the court did not abuse its
discretion in denying the motion to compel father to appear for his deposition
and properly granted the motion to
expunge the lis pendens.
Disposition
Treating
the appeal as a petition for an extraordinary writ to set aside the three
orders from which the appeal purportedly was taken, the petition is denied.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
After briefing in this matter was complete, and on the eve of oral argument,
respondent for the first time asserted that the orders from which this appeal
has been taken are not appealable. (Prob. Code, § 1301.) This appears to
be correct, and this court therefore exercises its discretion to treat the
appeal as an application for the issuance of an extraordinary writ.
Because of certain defects in the petition pointed out by the court
commissioner at the hearing on June 30, 2011, an amended petition was filed on
July 21, 2011.
