Conservatorship of Stouky CA6 ( 2022 )

Filed 9/14/22 Conservatorship of Stouky CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
Conservatorship of the Estate of HELENE H047388
MULA STOUKY. (Santa Clara County
PATRICIA M. BYE, as Conservator, etc., Super. Ct. No. 1-12-PR-170179)
Petitioner and Respondent,
v.
PAUL S. MULA II,
Objector and Appellant.
Appellant Paul S. Mula II (Paul)1 challenges an order of the probate court granting
a petition for substituted judgment filed by the court-appointed attorney for his aunt,
conservatee Helene Mula Stouky (Helene). The petition requested that, due to the recent
death of Paul’s father (a beneficiary of Helene’s trust and will), the conservator of
Helene’s estate, respondent Patricia M. Bye, execute an amendment to Helene’s trust and
a codicil to Helene’s will. The amendment and codicil would ensure that Paul and his
father’s other children would receive a portion of Helene’s assets that otherwise would
have gone to Paul’s uncle.
1
For clarity, we refer to some of the parties by their first names.
In the probate court, Paul opposed the petition on the ground that it changed
Helene’s estate plan to omit the allocation to him of a specific property that Helene
wanted him to have. In addition, Paul asserted that the petition’s proposed allocation of
Helene’s residence to his half-sister, the conservator of Helene’s person, was improper.
Paul’s sole contention on appeal is that the probate court abused its discretion in
failing to hold an evidentiary hearing before granting the petition. We reject his
contention and affirm the probate court’s order.
I. FACTS AND PROCEDURAL BACKGROUND
Helene was born in 1933. She had two brothers, Paul S. Mula (Paul Senior) and
Alan Mula, and no children. Appellant Paul is Paul Senior’s son. Christina Weiss-Smith
is Paul’s stepsister and the daughter of Paul Senior’s former wife.
In 1997, Helene created a trust. Under the 1997 trust, Paul would receive a
property on Arbor Drive if it remained in the trust at Helene’s death. Most of her
remaining property was to be distributed to her two brothers if they survived her. Her
will largely conformed to the provisions of her trust. Some of her property would go to
her mother. Christina was not named in the 1997 trust or will. Helene’s mother died in
2005.
Helene, who suffers from severe memory impairment, was conserved in 2012.
That year, the probate court appointed Robert E. Temmerman as Helene’s counsel and
Christina as conservator of her person. In 2012, Temmerman petitioned for a substituted
judgment changing Helene’s estate plan to account for the death of Helene’s mother,
simplify her estate plan, and conform to Helene’s “stated primary desire to treat her two
brothers equally.” The proposed amendments to the 1997 trust retained the provision that
Paul would receive Helene’s Arbor Drive property if it remained in the trust at Helene’s
death. The amendments provided that Christina would receive the trust’s two-thirds
interest in a property on Juanita Avenue if it remained in the trust at Helene’s death.
2
Helene’s will was to be simplified to a pour-over will. The court granted the petition. In
2013, the probate court appointed Bye as conservator of Helene’s estate.
Paul Senior died in October 2018. In light of this event, in March 2019,
Temmerman filed a petition seeking a substituted judgment order that would direct Bye
to execute an amendment to Helene’s trust and a codicil to Helene’s will. Temmerman
alleged that the proposed amendment and the proposed codicil were necessary to conform
the trust and will to Helene’s “stated primary desire to treat her two brothers equally.”
Under the prior trust provisions, Paul would have received only the Arbor Drive property.
Alan would have received the bulk of Helene’s estate because Helene’s estate plan did
not provide for Paul Senior’s children to receive his share of Helene’s estate in the event
of his death.
Under the proposed amended trust and the codicil to the will, Paul and his father’s
other children would share the portion of the residue of Helene’s estate that Paul Senior
would have received had he survived Helene. Paul would no longer specifically receive
the Arbor Drive property “because he will receive that property as part of his anticipated
one-quarter distributive share which is anticipated to be substantially larger than the value
of the specific gift.”
The amended trust and codicil would also provide for Christina to receive the cash
value of the remaining one-third interest in the Juanita Avenue property (so that she could
buy out the other owners). Christina would also receive a property on Hamilton Avenue
where Helene was residing “in recognition of [Christina’s] friendship and understanding,
and in recognition of her valuable services” as Helene’s conservator.
Paul was notified in March 2019 that the petition would be heard in the probate
court on June 19, 2019. On June 19, Paul filed a declaration in opposition to the petition.
He indicated he opposed the petition because he had invested over $300,000 in the Arbor
Drive property and objected to the proposed allocation of the Juanita Avenue and
3
Hamilton Avenue properties to Christina because she was a “non-blood relative” and
“prohibited as a donee.”2
On July 19, 2019, Paul filed points and authorities in opposition to the petition.
He argued the petition was inconsistent with Helene’s donative intent, which had always
been to have Paul be “one of her principal donees.” He argued at length that Christina
was a “presumptively disqualified donee.” The factual background in his points and
authorities was largely concerned with Helene’s mother’s trust (which was not before the
probate court in this proceeding), but it also set forth a detailed family history. He
asserted that Christina had not had a significant relationship with Helene before the
establishment of the conservatorship.
Paul also contended that Temmerman and Bye had mismanaged Helene’s assets
and taken actions that contravened Helene’s wishes. He argued that removing the
specific allocation of the Arbor Drive property to him was inconsistent with Helene’s
donative intent and with a stipulation entered in an eviction action Bye had brought
against him in 2013, which permitted him to retain possession of the Arbor Drive
property until the settlement of Helene’s estate.
In his points and authorities, Paul requested an evidentiary hearing. He filed a
similar supplemental opposition on July 25, 2019, which also requested an evidentiary
hearing. Neither of these pleadings identified the evidence that Paul intended to present
at an evidentiary hearing. On July 24, 2019, Christina filed a declaration describing at
length her long, warm, intimate, and continuing relationship with Helene.
At the July 31, 2019 hearing on the petition, Paul appeared in pro per and told the
court that Christina “has attacked us verbally and physically in front of my Aunt Dolly
[(Helene)], my family, my four young children. I will be filing a declaration with the
Court, and when we have an evidentiary hearing, I will bring those facts about.” Paul
2
The probate court apparently conducted a hearing on June 19, 2019, but there is
no minute order or other documentation of it in the record on appeal.
4
asserted that if Helene knew of what was being done she would “get rid of” Christina and
Bye, and fire Temmerman. He claimed that Christina “never spent a day of her life with
my Aunt Dolly before she was conserved.” Paul argued that Christina was “a prohibited,
disqualified donee.” He asserted that Alan (Helene’s surviving brother) “also will come
and contest, and he’s going to file an objection. He doesn’t agree with this either.”3 Paul
argued: “I think an evidentiary hearing needs to be set forth in order for this Court to
make a ruling on any of the facts.”4 Paul asserted that at an evidentiary hearing he would
“be able to bring forth the witnesses and the evidence needed to procure the fact that this
is exactly what my Aunt Dolly is requesting.”
The trial court asked Temmerman to address the need for “an evidentiary hearing
on whether or not Christina Weiss Smith is [] presumptively disqualified for reasons
other than the care-giving reason—for the affinity reason.” Temmerman told the court
that Christina was plainly not disqualified. Temmerman also addressed Paul’s allegations
against him. Temmerman denied that he was “the creator of this plan,” and he noted that
“if this were my judgment, I would not have [Paul] receive a dime.” Temmerman
pointed out that Paul had visited Helene only once since she had been conserved.
Temmerman explained that, based on his discussions with Helene when she “had clearer
capacity than she does now,” he believed that she “would want to benefit both [sic] of the
children of her deceased brother, Paul [Senior].”
3
Alan had been notified of the petition. There is no indication in the record that
he filed any objections to it.
4
Paul asked the court to rule on his motion for judicial notice, which he had filed
the night before the hearing.
The appellate record does not contain Paul’s judicial notice motion, the court did
not rule on it, and he makes no argument concerning it on appeal. The trial court told
Paul that it would not consider his cross-petition due to his failure to follow proper
procedures. The cross-petition, which is not in the appellate record, is not at issue in this
appeal.
5
Christina’s attorney argued that there was case authority “stand[ing] for the
proposition that [a Probate Code section] 2580 petition does not require an evidentiary
hearing in all circumstances.” Christina’s attorney stated the court had “the authority to
decide whether there should [] or shouldn’t be an evidentiary hearing, and [thought]
everything [was] before [the court] already.”
The trial court gave Paul the opportunity to respond. He argued: “I feel that the
Court must have an evidentiary hearing based upon these facts. I feel that it is your
ministerial duty, your Honor, to do so. I have been denied my civil rights since the
beginning here.”
In making its oral findings and order, the trial court stated it had read all of the
papers that had been filed by the parties. It granted the petition for a substituted
judgment. The court did not expressly address Paul’s request for an evidentiary hearing.
Paul timely filed a notice of appeal from the court’s July 31, 2019 order.
II. DISCUSSION
Paul contends on appeal that the probate court abused its discretion by failing to
hold an evidentiary hearing on the petition for substituted judgment before granting the
petition.
“The conservator or other interested person may file a petition under this article
for an order of the court authorizing or requiring the conservator to take a proposed
action for any one or more of the following purposes,” which include “[p]roviding gifts
for any purposes, and to any charities, relatives . . . , friends, or other objects of bounty,
as would be likely beneficiaries of gifts from the conservatee.” (Prob. Code, § 2580,
subd. (a).5) Such actions may include creating, modifying, or revoking a trust, or making
a will. (Id., subd. (b).)
5
Unspecified statutory references are to the Probate Code.
6
When such a petition is filed, the court must hold a “hearing” on the petition.
(§ 2581.) The court is required to consider “all the relevant circumstances,” which “may
include” “past donative declarations, practices, and conduct of the conservatee,” “traits of
the conservatee,” “[t]he relationship and intimacy of the prospective donees with the
conservatee, their standards of living, and the extent to which they would be natural
objects of the conservatee’s bounty by any objective test based on such relationship,
intimacy, and standards of living,” “[t]he wishes of the conservatee,” “[a]ny known estate
plan of the conservatee (including, but not limited to, the conservatee’s will, any trust of
which the conservatee is the settlor or beneficiary,” “[t]he manner in which the estate
would devolve upon the conservatee’s death, giving consideration to the age and the
mental and physical condition of the conservatee, the prospective devisees or heirs of the
conservatee, and the prospective donees,” “[t]he value, liquidity, and productiveness of
the estate,” taxes, “[t]he likelihood from all the circumstances that the conservatee as a
reasonably prudent person would take the proposed action if the conservatee had the
capacity to do so,” and “[w]hether a beneficiary has committed physical abuse, neglect,
false imprisonment, or financial abuse against the conservatee after the conservatee was
substantially unable to manage his or her financial resources, or resist fraud or undue
influence, and the conservatee’s disability persisted throughout the time of the hearing on
the proposed substituted judgment.” (§ 2583.)
“After hearing, the court, in its discretion, may approve, modify and approve, or
disapprove the proposed action and may authorize or direct the conservator to transfer or
dispose of assets or take other action as provided in the court’s order.” (§ 2584.) The
substituted judgment statutes do not expressly mandate that the required hearing be an
evidentiary hearing.
Paul asserts that this court’s decision in Conservatorship of Hart (1991) 228
Cal.App.3d 1244 (Hart) supports his claim that the probate court abused its discretion.
Hart, like the case before us, involved a contested petition for a substituted judgment.
7
(Id. at pp. 1250–1251.) The probate court did not conduct an evidentiary hearing before
granting the petition. (Id. at p. 1256.)
The objector appealed from the probate court’s order granting the petition. (Hart,
supra, 228 Cal.App.3d at p. 1250.) While the matter was pending on appeal, new
evidence came to light establishing that the probate court had been misinformed about the
significant tax consequences of previous gifts made by the conservatee. (Id. at pp. 1256–
1257.) This court stated of the new, undisputed evidence: “what the evidence reveals
above all is a serious breakdown in the administration of justice: Readily obtainable and
obviously relevant information concerning enormous previous gifts simply was not
produced in the superior court.” (Id. at p. 1259.) This court characterized the new
evidence as “significant to the question whether the superior court should have authorized
the one-time gifts in the amounts proposed or at all” (id. at p. 1260) and, because of the
significance of the omitted information, “the decision, and the order which embodies it,
are fatally flawed.” (Id. at p. 1261.)
This court in Hart took note of the “special circumstances” presented by the new,
undisputed evidence and decided that the appropriate disposition was to remand the
matter for a new hearing. (Hart, supra, 228 Cal.App.3d at p. 1262.) This court added,
“We should stress for purposes of remand . . . that adequate regard for the significance of
substituted-judgment proceedings and for the rights of all parties including the
conservatee requires that the superior court receive and consider relevant and otherwise
admissible evidence.” (Id. at p. 1264.)
Contrary to Paul’s contention, Hart does not support a conclusion that the trial
court abused its discretion here by failing to conduct an evidentiary hearing before
granting the petition. Paul points to no evidence of the type identified in Hart that the
trial court should have considered but did not. The court held a hearing on the petition,
which Paul attended and in which he participated. The transcript of the hearing
demonstrates that the court afforded Paul the opportunity to enumerate the factual bases
8
for his arguments against the petition and that the court considered them. Hart does not
illustrate that the trial court here abused its discretion by failing to conduct a formal
evidentiary hearing.
Paul’s reliance on Conservatorship of McElroy (2002) 104 Cal.App.4th 536 is also
misplaced. In McElroy, the appellant, relying on Hart, claimed that the probate court had
abused its discretion in failing to hold an evidentiary hearing before granting a substituted
judgment petition. (Id. at p. 544.) She argued that the word “ ‘hearing’ ” in section 2584
“means a full evidentiary hearing.” (Id. at p. 553.) The Court of Appeal rejected her
contention. It acknowledged that “ ‘if the petition is contested the petitioner will
normally be expected to proceed with evidence sufficient to sustain the applicable
burden.’ ” (Id. at p. 554.) The court “disagree[d] with [the appellant’s] suggestion that
an evidentiary hearing is required in all circumstances. Instead, Hart teaches that the trial
court must gather the information necessary to allow it to make a rational decision in
place of the conservatee. In some cases, this will mean that a full hearing is required. In
other cases, circumstances such as a need to reduce tax liabilities may make it obvious
that action is required. In other words, the trial court must use its discretion in evaluating
the information presented to it in order to decide if the information in the petition is
sufficient, or if a full contested evidentiary hearing is required.” (Id. at p. 554.) As
McElroy rejected a claim that the probate court had abused its discretion in failing to hold
an evidentiary hearing, it does not support Paul’s claim that the probate court did abuse
its discretion in this case.
As appellant, Paul bears the burden of demonstrating that the probate court’s order
was an abuse of discretion. “ ‘The appropriate [appellate] test for abuse of discretion is
whether the trial court exceeded the bounds of reason.’ ” (Estate of Gilkison (1998) 65
Cal.App.4th 1443, 1449.) In essence, Paul’s claim on appeal is that the probate court was
obligated to conduct an evidentiary hearing because he requested one. Although Paul
states that an evidentiary hearing was needed so he could present evidence of Helene’s
9
intent, her relationship with Christina, Christina’s “recent actions” of “abuse and undue
influence,” the fact that Christina was not a named beneficiary prior to 2012, Helene’s
relationship with Paul, and “the factors surrounding” the Arbor Drive property, his
pleadings below provided no detail about the nature of the evidence he wished to
present.6 His argument at the hearing added no further information.
We reject Paul’s claim that he can establish that the probate court abused its
discretion simply by showing that he requested an evidentiary hearing. We also disagree
that the probate court acted unreasonably in rejecting his request. The trial court gave
Paul a number of opportunities at the hearing on the petition to enumerate the legal and
factual bases for his objection. Paul made no attempt to introduce any evidence at the
July 31, 2019 hearing even though he had been notified of it over four months earlier.
The verified petition, the declarations, and the court records from the 2012 substituted
judgment proceedings provided a substantial evidentiary basis for the court to determine
whether Temmerman had met his burden of establishing that Helene’s intent would be
served by the proposed substituted judgment. Nothing in Paul’s declaration, his
pleadings, or his arguments at the hearing justified further delay in the resolution of this
matter. On appeal, Paul has not cited new information of the kind this court relied upon
in Hart. Accordingly, we decide that Paul has not demonstrated that the trial court
abused its discretion in declining to conduct an evidentiary hearing before granting the
petition.
6
In his appellate reply brief, Paul for the first time asserts that section 1022
mandated an evidentiary hearing. Section 1022 provides: “An affidavit or verified
petition shall be received as evidence when offered in an uncontested proceeding under
this code.” (§ 1022.) We decline to address this belated contention. (Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘ “Obvious considerations of fairness in
argument demand that the appellant present all of his points in the opening brief.” ’ ”].)
Furthermore, by failing to object below to the probate court’s consideration of the
verified petition and declarations at the contested hearing, Paul forfeited this contention.
(Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)
10
III. DISPOSITION
The probate court’s order is affirmed. Respondents shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(4).)
11
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Wilson, J.
H047388
In re Conservatorship of Helene Mula Stouky