Conservatorship of Sue B. CA3 ( 2015 )

Filed 10/27/15 Conservatorship of Sue B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
Conservatorship of the Person and Estate of SUE B. C078107
ROY C., (Super. Ct. No. PP20140147)
Petitioner and Respondent,
v.
WILLIAM C.,
Objector and Appellant;
KATHERINE CAIN, as Conservator, etc.,
Respondent.
William C., adult son of conservatee Sue B., appeals from an order appointing a
professional fiduciary probate conservator of the person and estate of Sue.1 On appeal,
1 To preserve the confidentiality of the conservatee, the parties are referred to by
their first names.
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he purports to raise a number of issues relative to Sue’s rights. Specifically, that as the
proposed conservatee, Sue had a right to an evidentiary hearing, had to attend the
hearing, had a right to legal representation, and should have her wishes honored. In
addition, he also contends the presumption of competency must be overcome by clear and
convincing evidence, and additional conservator powers should not be automatically
granted. We find that William does not have standing to raise these claims. William also
claims the trial court erred in denying his requests for an evidentiary hearing. We find on
the facts of this case, William was not entitled to such a hearing. Accordingly, we affirm.
BACKGROUND
In September 2014, Roy C., another adult son of conservatee, filed a petition for
the appointment of a probate conservator of the person and estate of Sue. (Prob. Code,2
§ 1820.) The petition also sought a determination that Sue lacked capacity to consent to
medical treatment, orders relating to the conservator’s powers, and order for dementia
placement or treatment. The petition was supported by capacity declarations from two
medical doctors and a nurse practitioner, each of whom concluded Sue has dementia.
Sue filed an objection to the petition. She objected to the appointment of a
conservator. But, if a conservator had to be appointed, she requested it be William.
William also filed an objection to the conservatorship petition. William objected to the
petition on the grounds that: (1) the medical capacity declarations did not comply with
the statutory requirements; (2) an attorney had not been appointed for Sue; (3) the
petition ignored Sue’s wishes to have him designated as her conservator; (4) the U.S.
Department of Veterans Affairs was not on notice of the proceedings; and, (5) the
petition sought overly broad powers for the conservator.
2 Undesignated statutory references are to the Probate Code.
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The trial court held a hearing on the petition in October 2014. Sue’s counsel
appeared at the hearing. William indicated he had spoken with Sue the morning of the
hearing, and despite his recommendation, she decided not to attend the hearing.
At the hearing, William reiterated his objection that the capacity declarations did
not comply with the statutory requirements that the declaring physicians have at least two
years’ experience in completing capacity declarations. The court asked if William was
requesting an evidentiary hearing. William indicated he was. William then reiterated his
objection that the powers being requested were too broad and that the U.S. Department of
Veterans Affairs had not received notice of the proceedings. Roy’s counsel provided the
notices of hearing with the proofs of service, showing the U.S. Department of Veterans
Affairs had been served. The court then again stated, “It sounds like we need to set this
matter for a hearing.” William did not respond. After further discussion and a brief
recess, Roy’s counsel and Sue’s counsel provided William with the correct legal
authority and he conceded that the capacity declarations were competent. William
requested a brief continuance to allow the declaring physicians to check a box on the
form, so the form was “completed properly or fully.” The court found the matter did not
have to be continued to have the declaring physicians check a particular box.
The trial court noted the recommendation in the investigative report was for a
private fiduciary, Katherine Cain, to be appointed as the conservator. The court indicated
its inclination to appoint Cain and asked if there were “any concern[s] by any party that
has not already been expressed, I would ask anyone who has some concern with that
order, to go ahead and let me know what their concern is.” William stated he was not
aware of Cain’s qualifications, and expressed concerns as to whether she could be an
objective and unbiased fiduciary. Roy’s counsel noted Cain’s qualifications had been
filed with the court. The court appointed Cain as the conservator.
Twice more William expressed his objection to the petition as being overbroad
and requested an evidentiary hearing on the petition. The court did not expressly rule on
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the requests, but implicitly denied them. The court ordered the conservatorship, granted
the request that Cain be appointed as the conservator of the estate and the person, and
granted the conservator the additional requested powers.
DISCUSSION
I
Standing
“An appeal may be taken only by a party who has standing to appeal. [Citation.]
This rule is jurisdictional.” (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) “Only a
party ‘aggrieved’ is entitled to appeal. (Code Civ. Proc., § 902; 9 Witkin, Cal. Procedure
(4th ed. 1997) Appeal, § 181, p. 237 et seq.)” (In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 827.) A party is legally aggrieved for appeal purposes only if his
or her rights or interests are “injuriously affected” by the judgment. (County of Alameda
v. Carleson (1971) 5 Cal.3d 730, 737; Crook v. Contreras (2002) 95 Cal.App.4th 1194,
1201.) The rights or interests “injuriously affected” must be “ ‘ “immediate, pecuniary,
and substantial and not nominal or a remote consequence of the judgment.” ’ ” (County
of Alameda, at p. 737; Howard Contracting, Inc. v. G. A. MacDonald Construction Co.
(1998) 71 Cal.App.4th 38, 58.) A right to participate in the underlying proceedings and
taking an adverse position to the ruling does not establish standing, without a showing
that the party’s personal rights are affected by a ruling. (Conservatorship of Gregory D.
(2013) 214 Cal.App.4th 62, 68-69; In re J.T. (2011) 195 Cal.App.4th 707, 717.) “[I]f a
party has no standing to appeal, this court has no jurisdiction to consider the appeal.”
(Estate of Bartsch (2011) 193 Cal.App.4th 885, 890.)
On appeal, William contends Sue was denied her rights to an evidentiary hearing,
to attend the hearing, to have legal representation, and to have her wishes regarding the
appointment of a conservator honored. He also complains the capacity declarations were
invalid, and therefore the presumption of competency was not overcome by clear and
convincing evidence, and Sue’s due process rights were violated by granting additional
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powers to the conservator. William has not identified any of his own rights or interests
which are injuriously affected by the conservatorship order. His claims of error relate to
alleged deprivations of Sue’s rights. However, William lacks standing to assert errors
that injuriously affect only Sue, a nonappealing party. William’s status as Sue’s son does
not confer standing to appeal on her behalf. (Conservatorship of Gregory D., supra,
214 Cal.App.4th at pp. 68-69.) These claims are dismissed.
II
Evidentiary Hearing
William also contends upon filing his objection to the appointment of the
conservator, he was entitled to an evidentiary hearing. We disagree.
Section 1829, subdivision (c) granted William the right to appear at the hearing
and oppose the petition. That does not, in and of itself, grant him the right to an
evidentiary hearing. William cites sections 1000, 1827, and 2100 to support this claimed
right. Sections 1000 and 2100 provide that except as otherwise provided in the Probate
Code, probate proceedings shall be tried in accordance with the trial of civil actions.
Section 1827 provides that the proposed conservatee is entitled to a jury trial upon
demand. This authority does not afford William an automatic right to an evidentiary
hearing on the conservatorship simply because he opposed the conservatorship petition
and the proposed conservator.
William did not make any colorable claim objecting to the admissibility of
evidence supporting the petition.3 William did not offer any evidence to support his
opposition of the petition or proposed conservator. William did not suggest the existence
of a dispute as to any material fact as to Sue’s right to remain free of a conservatorship.
3 At best, William purported to object to the capacity declarations. However, he
withdrew that objection when it was pointed out to him that the declarations complied
with the statutory requirements.
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In the absence of such a showing, the trial court properly denied his request for an
evidentiary hearing. (See Estate of Bennett (2008) 163 Cal.App.4th 1303, 1307-1308;
Estate of Lensch (2009) 177 Cal.App.4th 667, 673.) And, without having made an
evidentiary proffer, he cannot now criticize the trial court for ruling on the petition
without an evidentiary hearing. (Estate of Cairns (2010) 188 Cal.App.4th 937, 951.)
Moreover, it is the appellant’s burden to show error on appeal, and William’s briefs make
no argument and identify no evidence that suggest the trial court erred in denying his
requests for an evidentiary hearing. (See Conservatorship of Hume (2006)
140 Cal.App.4th 1385, 1393-1394.) Accordingly, we find no error.4
DISPOSITION
The orders of the trial court are affirmed. Respondent shall recover costs on
appeal.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Butz, J.
4 Respondent filed a motion to strike William’s reply brief. This motion is denied.
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