Conservatorship of Powell CA3 ( 2015 )

Filed 11/12/15 Conservatorship of Powell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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Conservatorship of the Person and Estate of C074452
ADRIENNE POWELL.
PAULA LETHERBLAIRE, as Conservator, etc., (Super. Ct. No. 34-2011-
00115088-PR-CP-FRC)
Petitioner and Appellant,
v.
TODD R. ROBIE,
Respondent.
A court-appointed conservator appeals from an award of attorney fees to her
former attorney who acted on behalf of the conservatorship. On appeal, the conservator
claims that the superior court did not have subject matter jurisdiction to make the attorney
fee award because an allegation of elder abuse had been made against the conservator.
We conclude that the conservator’s appeal is timely, contrary to the respondent’s
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contention; however, the conservator’s contention of error has no merit. We therefore
affirm the order.
BACKGROUND
Appellant Paula Letherblaire petitioned the superior court to be appointed
conservator of her mother, Adrienne Powell. While the petition was pending, someone
alleged that Letherblaire had committed financial elder abuse against Powell.
Letherblaire hired respondent attorney Todd R. Robie to represent her in pursuing the
conservatorship.
After the financial abuse allegations were resolved and the court had appointed
Letherblaire as conservator, attorney Robie withdrew from representation. He filed a
petition in the superior court requesting compensation from the conservatorship estate for
his services. Letherblaire objected to the request. After a hearing, the superior court
awarded attorney Robie $9,922.50 in attorney fees and $500 in costs. The attorney fee
award included compensation for time expended to petition for attorney fees and respond
to Letherblaire’s objections.
The ruling was issued on May 23, 2013, and attorney Robie served notice of entry
of the order on Letherblaire on May 30, 2013.
On June 5, 2013, Letherblaire filed a motion to vacate the court’s attorney fee
award, and the court denied the motion to vacate after a hearing on July 25, 2013.
Letherblaire filed a notice of appeal from the order awarding attorney fees on
August 2, 2013.
DISCUSSION
I
Timeliness of Appeal
Attorney Robie argues that the appeal is untimely because it was filed more than
60 days after he served notice on Letherblaire of the superior court’s order awarding
attorney fees. The argument is without merit because Letherblaire filed her notice of
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appeal within 30 days after entry of the order denying her motion to vacate the attorney
fee award, which motion was in essence a motion to reconsider the order.
While an order of attorney fees in a probate proceeding is appealable (Prob. Code,
§ 1300, subd. (e)), there is no provision allowing an appeal of the denial of a motion to
vacate such an order (see Prob. Code, §§ 1300, 1301; Estate of Miramontes-Najera
(2004) 118 Cal.App.4th 750, 755.) Since the only appealable order in this case was the
attorney fee award, we must determine whether Letherblaire’s appeal is timely with
respect to that order.
In her notice of appeal, Letherblaire designated the denial of the motion to vacate
as the order from which she appealed. Although that designation was technically
incorrect, we construe the notice of appeal liberally to give effect to the appeal, if
possible. (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) We therefore construe the notice of
appeal as designating the attorney fee award.
An appeal is timely if, among other things, the notice of appeal is filed within 30
days after service of an order denying a motion for reconsideration. (Cal. Rules of Court,
rule 8.108(e).) Here, the notice of appeal was filed about a week after denial of the
motion to vacate. Therefore, we proceed to the merits of the appeal.
II
Superior Court’s Jurisdiction
Letherblaire contends that the superior court had no subject matter jurisdiction to
enter the award of attorney fees in the conservatorship action because abused elder
provisions had been invoked. In support of this contention, Letherblaire cites Welfare
and Institutions Code section 15657.3. That section gives the superior court, already
sitting as a probate court and exercising jurisdiction over a conservatorship proceeding,
concurrent jurisdiction in civil actions and proceedings arising out of abuse of an elderly
or dependent adult. (Welf. & Inst. Code, § 15657.3, subd. (a).) The section also provides
that the superior court “shall not grant relief under this article [providing remedies for
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elder abuse] if the court determines that the matter should be determined in a civil action,
but shall instead transfer the matter to the general civil calendar of the superior court.”
(Welf. & Inst. Code, § 15657.3, subd. (b).)
It appears that Letherblaire is relying on the latter provision to assert that the
superior court, acting as a probate court, did not have jurisdiction. To the contrary, the
condition necessary to transfer the probate matter to the general civil calendar never
occurred – that is, the court did not determine that the matter should be determined in a
civil action. Therefore, Welfare and Institutions Code section 15657 did not divest the
probate court of jurisdiction to enter the award of attorney fees relating to the
conservatorship.
And, in any event, the probate court is part of the superior court. As far as
jurisdiction is concerned, there is no difference between the probate court and the general
civil calendar – both function under the general jurisdiction possessed by the superior
court.
“[S]ince the adoption of the California Constitution in 1879 there has been no
‘probate’ court in the sense of a court separate and distinct from the superior court. The
term ‘probate court’ is but a convenient way of expressing the concept of a superior court
sitting in exercise of its probate jurisdiction. This is but a colloquial expression such as it
is used in referring to the domestic relations court, family court, or traffic court. Such
expressions as these do not give courts performing these specific functions official status
as a separate court. [Citation.] ‘Probate jurisdiction is in the superior court, and the
probate court is a department of the superior court exercising such jurisdiction.’
[Citation.]” (Copley v. Copley (1978) 80 Cal.App.3d 97, 107.)
Consequently, there was no jurisdictional reason the superior court could not grant
a request for attorney fees in this matter.
Letherblaire also contends that the attorney fee award constituted “a due process
deprivation” because “no valid authority remain[ed] for the court to continue to exercise
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its general jurisdiction.” As already noted, the superior court had jurisdiction in the
conservatorship matter, so there was no due process deprivation.
Letherblaire quotes extensively from Estate of Jenanyan (1982) 31 Cal.3d 703(Jenanyan). In that case, the court held that “a claim of lack of jurisdiction is a corollary
to a claim of insufficient notice. The trial court is without jurisdiction to make an order
which has not been properly noticed, unless the right to notice has been waived.” (Id. at
p. 708.) Here, there is no issue of sufficient notice; therefore, Jenanyan is not on point.
Letherblaire also quotes extensively from Law Offices of Stanley J. Bell v. Shine,
Browne & Diamond (1995) 36 Cal.App.4th 1011 (Bell). In Bell, an attorney lost in his
bid to collect attorney fees in a Nevada court. (Id. at p. 1018.) He later filed a separate
action in California seeking a judicial declaration of his entitlement to the fees. He
claimed that the Nevada court lacked jurisdiction to make such a determination. While
the California appellate court agreed that the Nevada court had acted in excess of its
jurisdiction, it concluded that the attorney was barred from recovery in California
because he appeared in Nevada and pursued his claim there but did not appeal from the
Nevada court’s order. (Id. at pp. 1023-1024.)
Here, there is no issue of more than one court exercising jurisdiction in a case.
The superior court had subject matter jurisdiction to decide the attorney fee request, and
its exercise of that jurisdiction is not called into doubt by the decision in Bell.
Likewise, none of the other cases cited by Letherblaire support her assertion that
the superior court lacked subject matter jurisdiction to enter the attorney fee award.
To the extent Letherblaire may have attempted to raise other issues on appeal, we
do not address them because they were not adequately raised and supported by authority.
(People v. Stanley (1995) 10 Cal.4th 764, 793; Founding Members of the Newport Beach
Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.)
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DISPOSITION
The order is affirmed. Robie is awarded his costs on appeal. (Cal. Rules of Court,
rule 8.278(a).)
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
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