Conservatorship and Estate of Hugh F. CA4/2 ( 2022 )

Filed 1/24/22 Conservatorship and Estate of Hugh F. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Estate of
HUGH F., Deceased.
E073854
PATRICK F. et al., as Coconservators,
etc., (Super.Ct.No. PRRI1802481)
Petitioners and Respondents,
v. OPINION
ELSIE F.,
Objector and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas Cahraman and
Kenneth J. Fernandez, Judges. Reversed.
Timothy Emse for Objector and Appellant.
No appearance by Petitioners and Respondents.

Judge Cahraman issued the letters of temporary conservatorship and made the
jurisdictional rulings that are at issue in this appeal. The case was then assigned to Judge
Fernandez, who conducted a trial on the ultimate question of whether to appoint a
conservator and who entered the appealable order issuing general letters of
conservatorship.
1
Hugh and Elsie F.,1 who were married for more than 50 years, resided in
Brooklyn, New York. 2 In March 2018, while Elsie was in a New York hospital
recovering from a stroke, Patrick and Nichelle brought Hugh to live with them in Corona,
California. Less than six months later, on August 9, 2018, Patrick and Nichelle filed
petitions in the probate court to be appointed coconservators of Hugh’s person and estate.
They alleged Hugh suffered from Alzheimer’s disease and could not care for himself or
take care of his finances, and they alleged Elsie could not care for herself either. The
probate court exercised emergency jurisdiction and issued letters of temporary
conservatorship.
That December, Elsie objected to the petition for general letters of conservatorship
and argued the probate court lacked jurisdiction under the California Conservatorship
Jurisdiction Act (hereafter the CCJA; Prob. Code, 3 § 1980 et seq.) because Hugh had not
been in California for six continuous months before the petition was filed and California
was not Hugh’s “‘[h]ome state.’” (§ 1991, subd. (a)(2); see § 1993, subd. (a).) She also
filed a competing petition to be appointed conservator of Hugh’s person.
1 We refer to the parties by their first names to avoid confusion. We mean no
disrespect in doing so. (Estate of O’Connor (2018) 26 Cal.App.5th 871, 875, fn. 2.)
2 Hugh had two sons from a previous relationship, Patrick and Richard. Hugh
and Elsie had one daughter, Yvonne. Patrick is married to Nichelle, who was appointed
coconservator in this case.
3 All further statutory references are to the Probate Code unless otherwise
indicated.
2
Although the probate court agreed California was not Hugh’s home state on the
date Patrick and Nichelle filed their petitions, it concluded the jurisdictional defect had
been cured because California was Hugh’s home state by the time Elsie filed her
competing petition. And, after conducting a jurisdictional hearing (during which a
New York judge participated by telephone), the court concluded California was an
appropriate forum to conduct a trial and determine whether general letters of
conservatorship should issue. At the end of the trial, the court concluded a
conservatorship was needed, appointed Patrick and Nichelle as coconservators of
Hugh’s person and estate, and denied Elsie’s competing petition.
On appeal from the order issuing general letters of conservatorship, Elsie argues
Judge Cahraman erred by concluding the probate court had home state jurisdiction to
appoint conservators. Hugh died while this appeal was pending, so the conservatorship
of his person and estate terminated by operation of law. (§ 1860, subd. (a); Cal. Rules of
Court, rule 7.1052(b); Conservatorship of Starr (1989) 215 Cal.App.3d 1390, 1394.)
Although we conclude the appeal is moot because we cannot provide Elsie with effective
relief, we exercise our discretion not to dismiss the appeal and to decide the merits
“‘because it raises important issues that are capable of repetition but likely to evade
review.’” (Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2.)
We hold that the probate court erred by ruling it acquired home state jurisdiction
to appoint conservators when Elsie filed her competing petition. Properly interpreted, the
CCJA provides that home state jurisdiction exists or does not exist on the date the
conservatorship proceeding is first initiated, and a subsequently filed amended or
3
competing petition cannot cure the lack of home state jurisdiction. Although Judge
Cahraman intimated that the probate court might have jurisdiction to appoint a
conservator on the ground that California was a “‘[s]ignificant-connection state’” (see,
e.g., § 1991, subd. (a)(3)), he made no such finding and reiterated throughout the
proceedings that he had concluded California had home state jurisdiction. Therefore, we
decline to determine whether an alternative basis for jurisdiction is supported by the
record. The orders appointing Patrick and Nichelle coconservators and issuing general
letters of conservatorship are reversed. 4
I.
FACTS AND PROCEDURAL BACKGROUND 5
On August 9, 2018, Patrick and Nichelle filed petitions in the probate court
seeking letters of temporary conservatorship and general letters of conservatorship over
Hugh’s person and estate. The petitions alleged Hugh suffered from Alzheimer’s disease
and could no longer care for himself or understand and manage his finances. In addition,
the petitions alleged Elsie, who resided in New York, suffered a massive stroke and could
not care for herself. With respect to the court’s jurisdiction, the petition for general
letters of conservatorship alleged Hugh was a resident of Riverside County. Proofs of
service were filed with the court indicating Elsie was served by mail with notice of the
4Considering our disposition, we need not address Elsie’s claim that Judge
Fernandez erred by declining to revisit Judge Cahraman’s jurisdictional rulings.
5 Because Elsie’s appeal focuses solely on the probate court’s finding that
California had home state jurisdiction to appoint conservators, we need not set forth the
evidence that was presented to support a conservatorship.
4
hearing on the petitions and that she was provided telephonic notice at least 24 hours
before the hearing.
At a hearing conducted on August 21, 2018, Patrick and Nichelle and an attorney
for Hugh informed the probate court that Hugh owned two adjacent homes in Brooklyn,
New York. Hugh had been living in one of the homes with Elsie and their adult disabled
daughter, Yvonne, and Elsie was collecting rents from the other home. Together, the
homes had an estimated value of $4 million. The court, presided by Judge Cahraman,
found Elsie had received notice of the hearing and that a temporary conservatorship was
necessary, and indicated he was inclined to issue temporary letters with no bond. When
Patrick informed the court that Hugh had come to California on March 27, 2018, Judge
Cahraman stated, “Well, it’s a six-month rule, so I need to find emergency jurisdiction.
You filed before the six months.” The signed order issuing letters of temporary
conservatorship read, in part, “California exercises emergency jurisdiction; temp.
conservatee arrived in Calif. 3/27/18.”
Elsie appeared at a hearing conducted on October 25, 2018, and objected to the
proposed conservatorship. A New York attorney, who appeared with her but had not yet
been admitted pro hac vice, informed the probate court that no conservatorship
proceeding had been filed in New York. Hugh’s attorney informed the court that he had
no concerns about Hugh being properly cared for by Patrick and Nichelle. Richard, who
was in the courtroom, indicated he had no objection to the proposed conservatorship.
Judge Cahraman ordered that the temporary conservatorship remain in full force and
effect.
5
On December 6, 2018, Elsie, through local counsel, filed a written objection to the
petition for conservatorship. She accused Patrick and Nichelle of abducting Hugh and
bringing him to California under false pretenses. With respect to the probate court’s
jurisdiction, Elsie indicated she and Hugh had been married for 52 years and always lived
together in Brooklyn, New York. “He is a resident of Brooklyn, in New York, which is
his home state, and all of his friends, real property, and daily living contacts are in New
York.” Elsie objected to the court’s order granting the petition for a temporary
conservatorship and argued the “emergency” that supported the order had been fabricated
by Patrick and Nichelle when they brought Hugh to California without his consent. She
argued the “abduction and hijacking” of Hugh disqualified Patrick and Nichelle from
acting as his coconservators. In addition, she argued the court had no jurisdiction under
section 1993, subdivision (a), to grant the petition for a general conservatorship over
Hugh’s person and estate. And, Elsie argued she did not receive proper telephonic notice
of the prior hearing because Patrick and Nichelle intentionally omitted her correct
telephone number from the proof of service filed with the court. Elsie requested the court
set a contested hearing on the petition. The next day, Elsie filed her own petition for
conservatorship over Hugh’s person. She alleged Hugh was not a California resident and
was only temporarily residing here.
6
On January 31, 2019, Elsie filed a verified petition requesting the probate court
decline to exercise jurisdiction and to find, pursuant to section 1996, that New York is the
most appropriate forum for the conservatorship proceedings. She once more accused
Patrick and Nichelle of abducting Hugh and bringing him to California without his
consent and argued, inter alia, that the probate court lacked home state jurisdiction under
section 1993 to appoint a conservatorship because Hugh had not been in California for
six continuous months before the petition had been filed. In addition, Elsie indicated she
had been appointed as Hugh’s guardian by a New York court.
On its own motion, the probate court set a jurisdictional hearing for March 4,
2019, to be conducted jointly with the New York Supreme Court for King County.
Patrick and Nichelle filed an objection to Elsie’s petition to be appointed conservator of
Hugh’s person. The objection addressed Elsie’s claims that Hugh had been abducted but
did not address her argument that the probate court lacked jurisdiction to entertain their
own petition. And, in a declaration filed in support of their objection to Elsie’s request
for a hearing under section 1996, Patrick and Nichelle’s attorney stated, on information
and belief, that Elsie had not yet been appointed as guardian of Hugh, and her petition for
appointment was still pending in the New York court. Elsie’s attorney subsequently
acknowledged the New York petition was still pending.
7
At the jurisdictional hearing that commenced on March 4, 2019, Judge Cahraman
acknowledged that “California was not yet the home state as of the day [Patrick and
Nichelle] filed” their petitions. Yet, Judge Cahraman indicated Elsie had waited eight
and a half months after Hugh had been brought to California before she objected to the
court’s jurisdiction. The objection had only mentioned the probate court’s jurisdiction
“in passing” and it was not “a special appearance to quash the proceedings.” Judge
Cahraman indicated Patrick and Nichelle could have cured the jurisdictional defect “if
they had filed an amended petition three weeks after [the] initial petition, and we
wouldn’t be having a discussion.” Although they “didn’t do it,” Judge Cahraman
concluded, “Elise cured it for [them] by filing her own petition in California, because
California was, at that point, the home state of the person.” 6
After further discussion, both Judge Cahraman and the New York judge who
appeared telephonically agreed that California had jurisdiction, and the remainder of the
hearing would be focused on determining which state was the appropriate forum to
decide whether a conservator should be appointed, including deciding whether California
should decline to exercise jurisdiction based on Patrick and Nichelle’s alleged
unjustifiable conduct. On March 27, 2019, Judge Cahraman reiterated he and the New
6 Judge Cahraman intimated that, even if Elsie had not cured the home state
jurisdictional defect, the probate court might still have jurisdiction to issue general letters
of conservatorship under section 1993, subdivision (b), because “California did have a
significant connection in all of that.” However, he made no specific finding that
jurisdiction existed on that or any other alternative basis, and instead indicated the real
issue was whether “California should defer jurisdiction to New York on the basis that the
more convenient forum is New York.”
8
York judge had already concluded that, although California was not Hugh’s home state
when Patrick and Nichelle filed their petition, Elsie “cured that by filing a petition for
conservatorship in California after the six-month point.” Elsie’s attorney argued that
New York, not California, was Hugh’s home state. 7 Judge Cahraman stated, “But right
here, right now, you’re dealing with a trial court decision that California is the home
state.” After hearing additional arguments, Judge Cahraman found that California was an
appropriate forum to decide whether conservators should be appointed and denied Elsie’s
claim that New York was the more appropriate forum.8
Trial on the competing petitions for letters of conservatorship was assigned to
Judge Fernandez. At a pretrial conference, Judge Fernandez stated on the record that
Judge Cahraman had already conducted a “jurisdictional trial” and determined
“California was an appropriate forum under Probate Code section 1996.” During the
trial, when a question arose about whether the judge in the New York proceeding was
“waiting to decide what to do because she doesn’t know what’s going to happen in
California,” Judge Fernandez stated, “You know, I don’t need further testimony on that.”
After reviewing the minutes of the jurisdictional hearing, Judge Fernandez said, “[T]he
7 Although Judge Cahraman had previously highlighted the tardiness of Elsie’s
objection and counterpetition, he expressly found that Elsie had preserved her objection
to the ruling that California was Hugh’s home state.
8 Elsie does not challenge on appeal Judge Cahraman’s ruling that California was
an appropriate forum (§ 1996) or his ruling that the probate court had not acquired
jurisdiction based on “unjustifiable conduct” by Patrick and Nichelle, such that the court
should decline to exercise jurisdiction (§ 1997, subd. (a)(1)).
9
clear inference from that is that there is a case in New York and they just had a
jurisdictional hearing and it was decided that California would hear the evidence.”
In her written closing argument, Elsie stated Patrick and Nichelle had filed their
petition “prematurely,” before Hugh had been in California for six months. Although she
did not specifically urge Judge Fernandez to reconsider Judge Cahraman’s ruling that
home state jurisdiction existed, she nonetheless argued that the court should deny Patrick
and Nichelle’s petition because “it was filed irregularly.” Addressing that portion of
Elsie’s written submission, Judge Fernandez stated, “I believe Judge Cahraman made the
ruling on this. So whether you agree with it or not, I don’t believe that’s an issue for me
to decide in this case.” Elsie’s attorney argued, essentially, that his client’s
counterpetition did not cure the fact that Patrick and Nichelle had filed their petition less
than six months after they brought Hugh to California. However, counsel stated, “I’ll
leave that alone for the Court, and if the Court decides not to address it, that’s fine.”
During oral closing arguments, counsel argued, inter alia, that Elsie was not provided
with proper telephonic notice of the hearing on the petition for letters of temporary
conservatorship.
Judge Fernandez granted Patrick and Nichelle’s petition to be appointed
coconservators of Hugh’s person and estate, issued general letters of conservatorship, and
denied Elsie’s competing petition. On the record, he found Patrick and Nichelle had not
acted out of improper motives when they moved Hugh to California. In addition, Judge
Fernandez found “no fault in Elsie’s delay in filing for conservatorship over her husband.”
10
Elsie timely appealed. 9
II.
DISCUSSION
A. Although Elsie’s Appeal is Moot, We Exercise Our Discretion to Decide
Her Jurisdictional Challenge.
As noted, ante, the conservatorship of Hugh’s person and estate terminated when
he died. (§ 1860, subd. (a); Cal. Rules of Court, rule 7.1052(b); Conservatorship of
Starr, supra, 215 Cal.App.3d at p. 1394.) “‘“[T]he duty of this court, as of every other
judicial tribunal, is to decide actual controversies by a judgment which can be carried into
effect, and not to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in the case
before it.”’” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967)
67 Cal.2d 536, 541.) In general, an appeal must be dismissed as moot when, through no
fault of the respondent, an event occurs that renders it impossible for the reviewing court
9 The order issuing general letters of conservatorship to Patrick and Nichelle is
appealable. (Prob. Code, § 1301, subd. (a); Code Civ. Proc., § 904.1, subd. (a)(10)
[appeal may be taken “[f]rom an order made appealable by the Probate Code”];
Conservatorship of D.C. (2019) 39 Cal.App.5th 487, 493.) Judge Cahraman’s interim
jurisdictional rulings were not immediately appealable, but we may review them in this
appeal. (Code Civ. Proc., § 906; see Estate of Sapp (2019) 36 Cal.App.5th 86, 101.)
Patrick and Nichelle did not file a respondent’s brief. “Therefore, we ‘may decide
the appeal on the record, the opening brief, and any oral argument by the appellant.’
(Cal. Rules of Court, rule 8.220(a)(2).) ‘Nonetheless, [the appellant] still bears the
“affirmative burden to show error whether or not the respondent’s brief has been filed,”
and we “examine the record and reverse only if prejudicial error is found.”’” (City of
Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 792, fn. 5.)
11
to provide the appellant with effective relief. (Consol. etc. Corp. v. United A. etc.
Workers (1946) 27 Cal.2d 859, 863.)
We directed Elsie to serve and file a supplemental letter brief and address whether
any purpose would be served by this court deciding the appeal, whether the probate court
had continuing jurisdiction over Hugh’s property, and whether a probate case has been
filed to deal with his estate (and, if so, in what jurisdiction). Although Patrick and
Nichelle did not file a respondent’s brief (see, ante, fn. 9), we invited them to serve and
file a supplemental letter brief addressing the same questions.
In her letter brief, Elsie argued the appeal is not moot because the probate court
issued general letters of conservatorship over both Hugh’s person and estate, and the
question of the probate court’s jurisdiction remains a live issue because Hugh’s “property
is in New York, . . . a conflict exists with the estate issue,” and she wishes to have Hugh’s
remains returned to New York. In addition, Elsie argued that the probate court’s
jurisdiction over the estate is not terminated by Hugh’s death. Last, she informed this
court that, as far as she knows, a probate case has not been filed with respect to the estate
in any jurisdiction. Patrick and Nichelle did not submit a letter brief.
“Death of the conservatee does not terminate the probate court’s jurisdiction over
the conservatorship estate. The court retains jurisdiction over the estate ‘for the purpose
of settling the accounts of the guardian or conservator or for any other purpose incident to
the enforcement of the judgments and orders of the court upon such accounts . . . .’
(Prob. Code, § 2630.)” (Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076,
1088-1089, italics omitted; see § 2620, subd. (b).) Moreover, “the conservator has a
12
continuing ‘duty of custody and conservation of the estate’ after the conservatee’s death
‘pending the delivery thereof to the personal representative of the . . . conservatee’s estate
or other disposition according to law.’ (Prob. Code, § 2467, subd. (a).) The Probate
Code also expressly recognizes that, notwithstanding termination of the conservatorship,
the conservator nevertheless retains those powers that are necessary to perform this duty.
(Prob. Code, § 2467, subd. (b).)” (Conservatorship of O’Connor, at p. 1089; see § 2623,
subd. (a)(5); Cal. Rules of Court, rules 7.1052(c), 7.1054.)
In addition, “[u]pon the death of the . . . conservatee, the . . . conservator may
contract for and pay a reasonable sum for the expenses of the last illness and the
disposition of the remains of the deceased . . . conservatee, and for unpaid court-approved
attorney’s fees, and may pay the unpaid expenses of the . . . conservatorship accruing
before or after the death of the . . . conservatee, in full or in part, to the extent reasonable,
from any personal property of the deceased . . . conservatee which is under the control of
the . . . conservator.” (§ 2631, subd. (a).)
A finding that the probate court lacked jurisdiction to appoint a conservator in the
first place will not provide Elsie with effective relief. Even if this court were to reverse
the order issuing general letters of conservatorship, Patrick and Nichelle will still be
obligated by law to submit their final accounts and to deliver Hugh’s estate to his
personal representative (whoever that may be), and the probate court will still be
obligated to oversee those tasks. And, whether the probate court has jurisdiction to
13
entertain a petition to probate Hugh’s will and other questions10 will have to be addressed
in that court in the first instance.
Nonetheless, although the appeal is technically moot, we will exercise our
discretion to address Elsie’s jurisdictional challenge “‘because it raises important issues
that are capable of repetition but likely to evade review.’” (Conservatorship of John L.,
supra, 48 Cal.4th at p. 142, fn. 2.)
B. The Probate Court’s Jurisdiction over Adult Conservatorships.
Inter alia, the probate court may (1) appoint a conservator of the person for a
person who is unable to provide for their personal needs for physical health, food,
clothing, or shelter (§ 1801, subd. (a)), (2) appoint a conservator of the estate for a person
who is substantially unable to manage their personal finances or resist fraud and/or undue
influence (§ 1801, subd. (b)), or (3) appoint a conservator of both the person and the
estate (§ 1801, subd. (c)).
With some exceptions not applicable here, the probate court’s jurisdiction over
adult conservatorships is governed by the CCJA. (§ 2200, subd. (b); see § 1981
[exceptions].) Enacted in 2014 (Stats. 2014, ch. 553, § 20), the CCJA is California’s
variation of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
10 For example, the probate court will have to decide whether Elsie may demand
the return of Hugh’s remains to New York. The record on appeal contains a power of
attorney executed in 2015, in which Hugh named Richard as his health care proxy.
Unless the court determines the power of attorney is ineffective, it appears that Richard,
not Elsie, has the right to control the disposition of Hugh’s final remains. (Health & Saf.
Code, § 7100, subd. (a)(1); Prob. Code, § 4683, subd. (b)(3).) We express no opinion
here on the proper resolution of that issue.
14
(UAGPPJA). (§ 1980, subd. (a); see Recommendation: Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act (Dec. 2013) 43 Cal. Law Revision Com.
Rep. (2013) p. 93.) The UAGPPJA (and, by extension, the CCJA) was adopted, in part,
to provide a mechanism for resolving disputes and uncertainty about what state has
jurisdiction to appoint a conservator in a particular case. 11 (8A West’s U. Laws Ann.
(2021) UAGPPJA (2007), prefatory note, p. 4; 43 Cal. Law Revision Com. Rep. at p.
118.)
The CCJA provides the exclusive basis for determining whether a probate court of
this state or the court of another state has jurisdiction to appoint a conservator of the
person, the estate, or the person and the estate. (§ 1992.) Once the probate court’s
jurisdiction to appoint a conservator is established, that court “has exclusive and
continuing jurisdiction over the proceeding until it is terminated by the court or the
appointment expires by its own terms.” (§ 1995.)
The probate court has jurisdiction to appoint a conservator if this is the proposed
conservatee’s home state. (§ 1993, subd. (a).) “‘Home state’ means the state in which
the proposed conservatee was physically present, including any period of temporary
absence, for at least six consecutive months immediately before the filing of a petition for
a conservatorship order, or, if none, the state in which the proposed conservatee was
physically present, including any period of temporary absence, for at least six consecutive
11
Every state except Florida, Kansas, Michigan, and Texas has adopted the
UAGPPJA. The District of Columbia and the Virgin Islands have also adopted it.
(8A West’s U. Laws Ann., supra, pp. 2-3.)
15
months ending within the six months prior to the filing of the petition.” (§ 1991,
subd. (a)(2).)
If this is not the proposed conservatee’s “home state,”12 the probate court has
jurisdiction to appoint a conservator if this “is a significant-connection state”13 and: (1)
the proposed conservatee has no “home state” (§ 1993, subd. (b)); (2) the proposed
conservatee has a “home state” but that state expressly declined to exercise jurisdiction
because California is the most appropriate forum (id., subd. (c)); or (3) no
conservatorship petition is pending in the proposed conservatee’s “home state” or in
another “significant-connection state,” no objection is made to the probate court’s
jurisdiction by a person entitled to notice of the proceeding, and the probate court
concludes California is an appropriate forum (id., subd. (d); see § 1996).
Next, if this is not the proposed conservatee’s home state or a significant-
connection state, the probate court has jurisdiction to appoint a conservator only if the
proposed conservatee’s home state and all significant-connection states have declined to
exercise jurisdiction and concluded California is the most appropriate forum, and
jurisdiction here comports with the state and federal constitutions. (§ 1993, subd. (e).)
12 If this was not the proposed conservatee’s home state on the date the petition
was filed, the petitioner is required to comply with this state’s notice requirements and
provide notice to any persons who would be entitled to notice had the proceeding been
initiated in the proposed conservatee’s home state. (§ 1998.)
13 “‘Significant-connection state’ means a state, other than the home state, with
which a proposed conservatee has a significant connection other than mere physical
presence and in which substantial evidence concerning the proposed conservatee is
available.” (§ 1991, subd. (a)(3).)
16
When determining what other states, if any, are significant-connection states for purposes
of jurisdiction under section 1993, subdivision (e), the court must consider: “(1) The
location of the proposed conservatee’s family and other persons required to be notified of
the conservatorship proceeding. [¶] (2) The length of time the proposed conservatee at
any time was physically present in the state and the duration of any absence. [¶] (3) The
location of the proposed conservatee’s property. [¶] [And] (4) [t]he extent to which the
proposed conservatee has ties to the state such as voting registration, state or local tax
return filing, vehicle registration, driver’s license, social relationship, and receipt of
services.” (§ 1991, subd. (b).)
Last, the probate court has special jurisdiction to: (1) appoint a temporary
conservator in an emergency14 for a person who is physically present here; (2) appoint a
conservator with respect to real or tangible property located within the state; or
(3) appoint a conservator under a provisional order transferring a proceeding here from
another state. (§ 1994; see § 1993, subd. (f).) Generally, appointment of a temporary
conservatorship over a person who is merely physically present in this state expires no
later than 30 days after the appointment. (§ 2257, subd. (a)(2); see § 1994, subd. (a)(1).)
Even if the probate court has jurisdiction under section 1993 to appoint a
conservator, it may decline to exercise jurisdiction if it concludes another state is the
more appropriate forum. (§ 1996, subd. (a)(1).) In addition, if the probate court
14 “‘Emergency’ means a circumstance that likely will result in substantial harm
to a proposed conservatee’s health, safety, or welfare, and for which the appointment of a
conservator of the person is necessary because no other person has authority and is
willing to act on behalf of the proposed conservatee.” (§ 1991, subd. (a)(1).)
17
determines it acquired jurisdiction to appoint a conservator through a party’s unjustifiable
conduct, it may, inter alia, decline to exercise jurisdiction and assess reasonable expenses
and fees against that party. (§ 1997, subds. (a)(1), (b).)
C. Standard of Review of Jurisdictional Findings Under the CCJA.
In her brief, Elsie argues this court should review the probate court’s jurisdictional
findings for abuse of discretion. She has cited no published authority for the appropriate
standard of review for jurisdictional rulings under the CCJA, and we have found none.
The drafters of the CCJA relied, in part, on the similar Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.). For example,
the definition of home state in section 1991, subdivision (a)(2) “is derived from but
differs in a couple of respects from the definition of the same term” in the UCCJEA.
(Cal. Law Revision Com. com., 52A pt. 2 West’s Ann. Probate Code (2016 ed.) foll.
§ 1991, p. 17.)15 Therefore, it is appropriate to look to cases under the UCCJEA for
guidance here.
15 “‘Because the official comments of the California Law Revision Commission
“are declarative of the intent not only of the draftsman of the code but also of the
legislators who subsequently enacted it” [citation], the comments are persuasive, albeit
not conclusive, evidence of that intent.’” (Metcalf v. County of San Joaquin (2008)
42 Cal.4th 1121, 1132.)
In addition, when interpreting provisions of the CCJA, we may treat as persuasive
authority the comments of the Uniform Laws Commissioners on identical or similar
provisions of the UAGPPJA. (See § 2, subd. (b) [“A provision of this code, insofar as it
is the same in substance as a provision of a uniform act, shall be so construed as to
effectuate the general purpose to make uniform the law in those states which enact that
provision.”].)
18
As this court has previously held, “when the facts are contested, a trial court’s
jurisdictional finding under the UCCJEA is reviewed under the deferential substantial
evidence standard. [Citations.] When conducting a substantial evidence review, we must
review the entire record in the light most favorable to the prevailing party, resolve all
conflicts in the evidence in favor of the ruling or judgment being reviewed, and indulge
all reasonable inferences in support of the [trial] court’s findings. [Citation.] The [trial]
court’s resolution of conflicts in the evidence and credibility assessments are binding on
this court.” (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286-1287, fn. omitted.)
“When the facts are uncontested, the ultimate determination of jurisdiction is a question
of law we review de novo.” (Id. at p. 1286, fn. 5.) Under either standard of review, this
court is not free to reweigh the jurisdictional facts.16 (Id. at pp. 1283-1287 & fn. 5.)
Questions of statutory interpretation are reviewed de novo. (Id. at p. 1287.)
We are persuaded that the standards of review applicable to the UCCJEA should
apply here. The basic facts bearing on the probate court’s jurisdiction were not contested
below, and for obvious reasons are not in dispute on appeal either. Moreover, the probate
court’s jurisdictional finding, in this case, was based on the court’s interpretation of the
CCJA. Therefore, we review the question of the probate court’s jurisdiction de novo.
(Schneer v. Llaurado, supra, 242 Cal.App.4th at pp. 1286-1287 & fn. 5.)
16 Citing the California Constitution, article VI, section 11, subdivision (c), and
section 909 of the Code of Civil Procedure, Elsie argues this court is empowered to make
its own determinations of fact and to take additional evidence. (See Cal. Rules of Court,
rule 8.252(b), (c).) But that “‘authority should be exercised sparingly.’” (In re Zeth S.
(2003) 31 Cal.4th 396, 405.) We find no “‘exceptional circumstances’” (ibid.) that
would justify exercising that authority in this case.
19
D. The Probate Court Erred by Concluding It Had Home State Jurisdiction.
As Judge Cahraman acknowledged, there is no question California was not Hugh’s
home state when Patrick and Nichelle filed their petitions. Hugh was brought to
California on March 27, 2018, and he had not yet been here “for at least six consecutive
months immediately before” Patrick and Nichelle filed their petitions on August 9, 2018.
(§ 1991, subd. (a)(2).) Nonetheless, Judge Cahraman concluded Patrick and Nichelle
could have cured the lack of home state jurisdiction by filing an amended petition after
Hugh had been in California for six continuous months. And, because Elsie filed her
competing petition to be appointed conservator in December 2018—after Hugh had been
here for more than eight continuous months—Judge Cahraman concluded she cured the
defect for them. Judge Cahraman’s finding of home state jurisdiction, in this case, is
sound only if the phrase “a petition for a conservatorship order” in section 1991,
subdivision (a)(2), is interpreted broadly to include the first petition that commenced the
proceeding and a subsequently filed one. For the following reasons, we conclude only
the first petition may be considered.
When interpreting statutes, “‘[w]e begin by examining the statutory language,
giving the words their usual and ordinary meaning. If there is no ambiguity, the plain
meaning of the language governs.’” (Conservatorship of Presha (2018) 26 Cal.App.5th
487, 496.) We must give statutes a fair and reasonable interpretation with due regard for
the language used and the Legislature’s purpose. (Conservatorship of Angela D. (1999)
70 Cal.App.4th 1410, 1420.)
20
“‘If the statutory language permits more than one reasonable interpretation, courts
may consider other aids, such as the statute’s purpose, legislative history, and public
policy.’ [Citation.] The wider historical circumstances of a law’s enactment may assist
in ascertaining legislative intent, supplying context for otherwise ambiguous language.”
(Busker v. Wabtec Corp. (2021) 11 Cal.5th 1147, 1157-1158.) In addition, we may
consider how similar statutory schemes have been interpreted. “‘“[S]tatutes should be
construed in light of one another [citations] and . . . when statutes are in pari materia
similar phrases appearing in each should be given like meanings.”’ [Citation.] ‘Two
“‘[s]tatutes are considered to be in pari materia when they relate to the same person or
thing, to the same class of person[s or] things, or have the same purpose or object.’”’”
(People v. Tran (2015) 61 Cal.4th 1160, 1168.)
As indicated, ante, a proposed conservatee’s home state is where he or she was
physically present “for at least six consecutive months immediately before the filing of a
petition for a conservatorship order . . . .” (§ 1991, subd. (a)(2).) What constitutes “a
petition for a conservatorship order” (ibid.) for purposes of home state jurisdiction under
section 1993, subdivision (a), is ambiguous in a case such as this. Does it apply solely to
the first petition or does it include a later filed amended petition and/or a competing
petition filed by an objector? The statutory scheme does not provide a clear answer.
Conservatorship proceedings are initiated when the proposed conservator files a
“petition” (§§ 1820, 1821),17 which is defined broadly to mean “an application or request
17See California Rules of Court, rule 7.1050(a); Judicial Council Forms, forms
GC-111, GC-310.
21
in the nature of a petition.” (§ 1430.) Patrick and Nichelle’s original petitions and
Elsie’s competing petition satisfy those general criteria.
The available legislative history is not determinative either. The Legislature
intended that home state jurisdiction to appoint a conservator has priority over other
bases of jurisdiction. (Cal. Law Revision Com. com., 52A pt. 2 West’s Ann. Probate
Code, supra, foll. § 1993, p. 20 [“home state” jurisdiction is first in “a three-level priority
for determining which state has jurisdiction”]; 43 Cal. Law Revision Com. Rep. at p. 118
[“home state” jurisdiction is “[a]t the top of the [three-tier] hierarchy” established by the
UAGPPJA].) And, the six-month residency requirement for home state jurisdiction
under section 1993, subdivision (a), “is fulfilled or not on the date the petition is filed.”
(Cal. Law Revision Com. com., 52A pt. 2 West’s Ann. Probate Code, supra, foll. § 1993,
p. 20.) But, nothing in the legislative history of the CCJA clearly indicates the
Legislature intended that a probate court’s determination of home state jurisdiction
cannot take into consideration an amended or competing petition filed later.
However, as we did for the standard of review, we find it useful to consider the
similarly worded UCCJEA when interpreting home state. As already stated, ante, the
CCJA’s definition of home state was modeled on the UCCJEA. (Cal. Law Revision
Com. com., 52A pt. 2 West’s Ann. Probate Code, supra, foll. § 1991, p. 17.) For
purposes of the UCCJEA, a home state is the state in which the child lived “for at least
six consecutive months immediately before the commencement of a child custody
proceeding.” (Fam. Code, § 3402, subd. (g).) “‘Commencement’ means the filing of the
first pleading in a proceeding.” (Id., at § 3402, subd. (e), italics added.) The courts have
22
long interpreted the UCCJEA (and its predecessor) to mean what it says: subject matter
to make an initial child custody determination either exists or does not exist when the
relevant proceeding is commenced. (See, e.g., A.M. v. Superior Court (2021)
63 Cal.App.5th 343, 350; In re Aiden L. (2017) 16 Cal.App.5th 508, 516; Schneer v.
Llaurado, supra, 242 Cal.App.4th at p. 1287; Ocegueda v. Perreira (2015)
232 Cal.App.4th 1079, 1084; Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1316-1317;
In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 491; In re Marriage of Newsome
(1998) 68 Cal.App.4th 949, 956; Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025,
1035; Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1015, fn. 5.) If the rule were
otherwise, an absconding parent would be encouraged to purposefully delay the
proceeding “to gain time to establish significant contact with the state.” (Plas, at p. 1015,
fn. 5.)
Child custody issues governed by the UCCJEA arise in various forms of
proceedings (see Fam. Code, § 3402, subd. (d) [defining “‘Child custody proceeding’”]),
so the drafters of that act were obviously careful to use broad language when grounding
home state jurisdiction on the first pleading filed in the proceeding (id. at subds. (e), (g)).
In contrast, a proceeding to appoint a conservator may only be commenced by filing a
petition (Prob. Code, §§ 1820, 1821), so the drafters of the CCJA had no need to use the
more generic first pleading. Nonetheless, the same policy concerns under the UCCJEA
apply in this context. Unless the CCJA is interpreted to require that home state
jurisdiction exists or does not exist on the date a conservatorship proceeding is first
commenced—i.e., when the first petition to appoint a conservator is filed—parties will be
23
encouraged to purposely delay the proceeding until the proposed conservatee has resided
in the state for six consecutive months and then file an amended or competing petition.18
Such a result will frustrate, not advance, one of the principal purposes of the CCJA—to
resolve uncertainty about what state has jurisdiction to appoint a conservator. (8A West’s
U. Laws Ann., supra, UAGPPJA (2007), prefatory note, p. 4; 43 Cal. Law Revision
Com. Rep. at p. 118.)
Therefore, we conclude the most reasonable interpretation of home state under
section 1991, subdivision (a)(2), that comports with the purposes of the CCJA, is that the
proposed conservatee must have resided in California for at least six continuous months
on the date the first petition to appoint a conservator is filed. Because Hugh had not been
physically present in California for at least six continuous months on the date Patrick and
Nichelle filed their petitions, we must conclude the probate court erred when it ruled the
court had home state jurisdiction.
18 To repeat, Judge Fernandez expressly found that Patrick and Nichelle had not
acted out of improper motives when they moved Hugh to California and that Elsie had
not been at fault when she delayed in filing her own petition, and nothing in this opinion
should be construed to imply we conclude either party acted improperly.
24
III.
DISPOSITION
The orders appointing Patrick and Nichelle coconservators and issuing general
letters of conservatorship are reversed. Elsie shall recover her costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
25