Conservatorship and Estate of Bell CA2/7 ( 2021 )

Filed 12/14/21 Conservatorship and Estate of Bell CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Conservatorship of the Person B311461
and Estate of ALCEONE
BELL. (Los Angeles County
Super. Ct. No.
17STPB11004)
LATIF DIOP,
Petitioner and Appellant,
v.
AILEEN FEDERIZO, as
Conservator, etc.,
Objector and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Lee R. Bogdanoff, Judge. Affirmed.
Law Office of Kaveh Keshmiri and Kaveh Keshmiri for
Petitioner and Appellant.
No appearance by Objector and Respondent.
______________
Latif Diop appeals the probate court’s February 11, 2021
order denying his July 2019 petition for attorney fees incurred
when he successfully petitioned the court to serve as the
temporary conservator of Alceone Bell. Diop contends the court
failed to consider his supplemental petition filed in December
2020, which he claims cured any defects in his July 2019 request.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Diop designated a record on appeal that consists of the
superior court’s docket sheet in this case, the February 11, 2021
order from which he appeals, and his February 17, 2021 notice of
appeal. He did not include in his designation of record on appeal
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a transcript of proceedings, any documents filed in the case, or
any of the court’s prior orders.
According to Diop’s appellate brief, which understandably
contains no citations to the nonexistent record on appeal, Diop
petitioned to become the conservator of Bell in 2017 after he
discovered Bell was malnourished and giving money to her
roommate, who was using her credit cards. Diop tried his
conservatorship petition to the court and established Bell was
suffering from dementia. Following trial the court appointed
Diop as Bell’s temporary conservator. At some point shortly
thereafter, while Diop “was waiting for the testamentary letters
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Diop checked the box on his notice designating record on
appeal indicating his desire to proceed “without a record of the
oral proceedings (what was said at the hearing or trial) in the
superior court” and acknowledging that, as a consequence of that
election, “the Court of Appeal will not be able to consider what
was said during those proceedings in deciding whether an error
was made in the superior court proceedings.”
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and powers from the court,” the court appointed a new
conservator and removed Diop. Diop did not object to the
removal because he wanted “what was best” for Bell.
In July 2019 Diop petitioned to recover attorney fees he
incurred before his removal. According to Diop, the new
conservator did not object to paying Diop’s attorney fees.
In December 2020 Diop filed a document apparently titled
Supplemental Declarations of Latif Diop and Kaveh Keshmiri in
Support of Petition for Fees containing declarations from Diop
and his attorney, Keshmiri, as well as an itemization of
Keshmiri’s attorney fees. In his declaration Keshmiri, seemingly
referring to a prior court filing, stated his “prior accountings may
have seemed offset or inaccurate, because the time spent was not
aligning or corresponding to the correct dollar amount. This was
a drafting error. I have now marked the hours with a line
corresponding to the dollar charge in the accounting attached as
Exhibit A.” In addition to fees for his attorney, Diop stated in his
declaration he sought “nonattorney fees” of $55 per hour, or a
total of $5,577, for his work in connection with the temporary
conservatorship.
On February 11, 2021 the court denied Diop’s petition. In
its order the court stated, “The Court finds that insufficient
evidence has been provided to grant the matter on calendar this
date based upon the reading of the moving papers and
consideration of all presented evidence. [¶] The Petition—
Allowance of Fees filed on 7/23/2019 by Petitioner(s) Latif Diop is
denied with prejudice.”
Diop filed a timely notice of appeal.
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DISCUSSION
Probate Code sections 2641 and 2642 authorize payments
from a conservatee’s estate to compensate a conservator and the
conservator’s attorneys for services during the conservatorship.
(Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198,
1204.) Without citing those statutory provisions governing his
request, Diop contends he spent three years and more than
$18,000 in attorney fees establishing the need for a
conservatorship of Bell and the probate court erred in failing to
consider his December 2020 “supplemental petition” when
denying his request for fees. There are numerous problems with
Diop’s appeal.
First, Diop failed to identify the December 2020 filing in his
designation of record on appeal, and those documents are not
included as a part of the record before us. Diop’s attachment of a
copy of those documents, without any file stamp, to his appellate
brief instead of filing a motion to augment the record was
improper and did not cure the defect. (See Cal. Rules of Court,
rules 8.155(a) [augmenting the record on appeal], 8.204(d)
[attachments to briefs].)
Second, even if Diop had properly moved to augment the
record on appeal with a file-stamped copy of the supplemental
papers and we had granted that motion, Diop still presented a
wholly inadequate record for this court to consider his challenge
to the probate court’s order. Although Diop complains the
probate court failed to consider what he now describes as his
“supplemental petition,” there is no basis for us to determine if
that is true. Diop’s December 2020 filing was titled supplemental
declarations in support of his petition. The court denied his
petition. There is no indication the court failed to consider the
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December 2020 supplemental declarations in support of the
petition when it denied the petition.
Third, Diop did not include his July 2019 petition in the
record on appeal. Accordingly, we cannot tell whether his
supplemental documents, assuming they were properly filed and
considered, would have made any difference.
Fourth, according to the docket, on September 15, 2020 the
court denied a request for attorney fees that Diop had filed in
March 2019, before his July 2019 request for fees and his
December 2020 supplemental declarations. The docket also
reflects an October 27, 2020 petition by the conservator to
approve a settlement agreement and the court’s December 4,
2020 order approving that request, a ruling that may well have
affected Diop’s entitlement to fees. None of this information was
included in the record, let alone explained.
In sum, there could be myriad reasons for the court’s order
denying Diop’s July 2019 petition notwithstanding Diop’s filing of
supplemental declarations in December 2020. It was Diop’s
burden to provide an adequate record on appeal to demonstrate
reversible error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-
1296 [to overcome presumption on appeal that an appealed
judgment or order is presumed correct, appellant must provide an
adequate record demonstrating reversible error]; Ballard v. Uribe
(1986) 41 Cal.3d 564, 574 [“[i]t is well settled, of course, that a
party challenging a judgment has the burden of proving
reversible error by an adequate record”]; Randall v. Mousseau
(2016) 2 Cal.App.5th 929, 935 [same]; Lincoln Fountain Villas
Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006)
136 Cal.App.4th 999, 1003, fn. 1 [same].) Because Diop has failed
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to provide such a record, we necessarily presume the order is
correct and affirm. (See Ballard, at p. 574.)
DISPOSITION
The February 11, 2021 order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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