Conservatorship and Estate of Barenchi CA2/4 ( 2022 )

Filed 12/12/22 Conservatorship and Estate of Barenchi CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
Conservatorship of the Person and B303810
Estate of DORIS E. BARENCHI,
Deceased. (Los Angeles County
Super. Ct. No. 16STPB00842)
DARA L. MOORE et al.,
Petitioners and Respondents,
v.
DENISHA PARKER,
Objector and Appellant.
Estate of DORIS E. BARENCHI,
Deceased. B304774
AMY NOEL, as Administrator, etc., (Los Angeles County
Petitioner and Respondent, Super. Ct. No. 20STPB00968)
v.
DENISHA PARKER,
Objector and Appellant.
APPEALS from orders of the Superior Court of
Los Angeles County, David J. Cowan and Gus T. May,
Judges. Trust revocation order affirmed. Fee order and
appointment order dismissed.
Denisha Parker, in pro. per., for Objector and
Appellant.
Ross Law Group and Mark A. Ross, for Petitioner and
Respondent Dara L. Moore.
Velasco Law Group, Richard J. Radcliffe and Peter A.
Sahin, for Petitioner and Respondent Amy L. Noel.
No appearance by Petitioner and Respondent the Los
Angeles County Office of the Public Guardian.
______________________________________________
INTRODUCTION
These consolidated appeals arise from cases concerning
the temporary conservatorship of Doris Elaine Barenchi and,
following her death, the administration of her estate. In late
2015, while in a rehabilitation facility recovering from an
illness, 92-year-old Barenchi met appellant Denisha Parker.
Several months later, Barenchi executed and transferred her
property into the Doris Elaine Barenchi Living Trust (the
Trust), which named Parker and Barenchi as co-trustees and
provided for Parker to receive the trust estate upon
Barenchi’s death. One month later, at the request of Los
Angeles County Adult Protective Services (APS), Diana C.
Homeier, M.D., evaluated Barenchi and opined she needed a
conservator because she lacked the cognitive capacity to
make medical and financial decisions and was at very high
risk of undue influence. Later that year, on petition by
2
Barenchi’s niece, respondent Dara Moore, the probate court
appointed professional fiduciaries as temporary conservators
of Barenchi’s estate.
In 2019, the court appointed respondent Los Angeles
County Office of the Public Guardian (the Public Guardian)
as the new temporary conservator of both Barenchi’s estate
and her person. Soon after, the Public Guardian petitioned
to revoke the Trust under the substituted judgment doctrine,
relying on Dr. Homeier’s evaluation and other evidence that
Barenchi lacked testamentary capacity and had been unduly
influenced by Parker. Barenchi opposed the petition
(through her court-appointed counsel), as did Parker, who
presented oral argument in propria persona at the hearing.
The court granted the petition to revoke the Trust, finding
that Barenchi lacked capacity to revoke it herself, and that
revocation would benefit Barenchi by, inter alia, preventing
her estate from passing to Parker, who had subjected her to
undue influence and elder abuse. Parker appealed the
revocation order.
In October 2019, Barenchi died intestate, and Moore
petitioned to recover attorney fees from Barenchi’s estate
under Probate Code section 2640.1, on the ground that she
had successfully petitioned for the appointment of temporary
conservators to the benefit of Barenchi and her estate.1 The
court heard and granted Moore’s unopposed fee petition.
Parker appealed the fee order.
1
Undesignated statutory references are to the Probate Code.
3
In January 2020, Barenchi’s granddaughter,
respondent Amy L. Noel, petitioned the court for
appointment as administrator of Barenchi’s estate. The
court heard and granted Noel’s unopposed petition. Parker
appealed the appointment order.
In her consolidated appeals, Parker contends the court
erred in revoking the Trust, awarding Moore attorney fees,
and appointing Noel as administrator of Barenchi’s estate.
In response, Moore and Noel contend that Parker lacks
standing to maintain her appeals because she was neither
aggrieved by the orders nor a party of record, and that in
any event, she fails to demonstrate error on the merits. The
Public Guardian has declined to appear.
We conclude that although Parker has standing to
appeal the revocation order as an aggrieved beneficiary and
active participant in the conservatorship case, the court
acted within its discretion in revoking the Trust on the basis
of the information before it, including Dr. Homeier’s opinion
that a mere month after the Trust’s execution, Barenchi
lacked testamentary capacity and was at very high risk of
undue influence. Accordingly, we affirm the revocation
order. We further conclude that in the wake of the Trust’s
revocation, Parker lacked any cognizable interest in
Barenchi’s estate and thus was not aggrieved by the court’s
orders awarding Moore attorney fees from the estate and
appointing Noel as administrator thereof. Because Parker
lacks standing to maintain her appeals from the fee and
4
appointment orders, we dismiss the appeals from those
orders.
PROCEEDINGS BELOW
A. Barenchi’s Temporary Conservatorship and
Evidence of Incapacity
In late 2015, 92-year-old Barenchi was hospitalized for
dehydration and then transferred to a rehabilitation facility,
where she met Parker, the daughter of a fellow patient. On
May 3, 2016, Barenchi executed the Trust, designating
Parker as Barenchi’s co-trustee and providing that Parker
would receive the trust estate upon Barenchi’s death. The
next day, Barenchi executed a grant deed transferring her
home in Lakewood into the trust estate.
Later in May 2016, Moore (Barenchi’s niece) filed a
petition for appointment of professional fiduciaries as
conservators of Barenchi’s person and estate, followed soon
after by a petition for the fiduciaries’ temporary appointment
pending the probate court’s decision. Moore alleged, inter
alia, that Parker had isolated Barenchi from friends and
neighbors who previously had assisted her in her affairs, and
unduly influenced Barenchi to execute the Trust and engage
in other transactions. In a supporting declaration, a
neighbor attested that after Parker obstructed his efforts to
continue assisting Barenchi, he made a report to APS.
On June 2, one month after Barenchi executed the
Trust, physician Diana C. Homeier, M.D. evaluated
Barenchi’s cognitive status at the request of APS. In a
5
detailed capacity declaration, Dr. Homeier opined that
Barenchi had dementia and lacked the capacity to give
informed consent to any form of medical treatment. She
further opined that Barenchi was “at very high risk for
undue influence” and needed a conservator “to protect her
assets as well as make proper decisions to protect her
person.” During the evaluation, Barenchi identified “Dr.
Chaudry” as her personal doctor and denied that she had
changed her doctor or intended to do so, but an APS worker
reported that Parker had changed Barenchi’s doctor to
Suzanne L. Fussell, M.D.2
In July 2016, on the recommendation of Barenchi’s
appointed counsel Christopher Bury, the court (Judge
William Barry) granted Moore’s petition to appoint
fiduciaries as temporary conservators of Barenchi’s estate.3
2
One week later (on June 8, 2016), Parker transported
Barenchi from Lakewood to Long Beach to be evaluated by Dr.
Fussell. In a form capacity declaration, which Parker filed with
the court, Dr. Fussell opined that Barenchi had the capacity to
give informed consent to medical treatment, without describing
her evaluation or otherwise explaining the basis of her opinion.
Dr. Fussell’s declaration was expressly “limited to medical
consent capacity” and did not purport to address Barenchi’s
testamentary capacity.
3
At an October 2016 hearing attended by Parker, the court
(then-Commissioner Brenda Penny) granted Bury’s request to be
relieved as Barenchi’s counsel due to an unspecified conflict of
interest. At Parker’s request, the court allowed Barenchi to read
a lengthy letter into the record; at one point Barenchi indicated
(Fn. is continued on the next page.)
6
As the conservatorship case progressed, Barenchi’s
appointed counsel was replaced several times, until the court
(Judge David J. Cowan) finally appointed attorney John
Gordon in January 2018. In July 2018, Gordon filed
Barenchi’s opposition to Moore’s conservatorship petition.
By this time, Parker had moved Barenchi from Barenchi’s
Lakewood home into Parker’s small apartment in Long
Beach, where Barenchi was reported by a probate
investigator to be living in cramped and substandard
conditions.
In November 2018, mental evaluator Gary Freedman-
Harvey, Ph.D., evaluated Barenchi and executed a capacity
declaration, which was filed with the court. Freedman-
Harvey opined -- as Dr. Homeier had opined two years
earlier -- that Barenchi had dementia and lacked the
capacity to give informed consent to any form of medical
treatment. He reported, inter alia, that Barenchi was
“almost too cognitively impaired to evaluate.”
B. Revocation of the Trust
she had read the entire letter, but Bury advised the court that
the letter contained an additional page, prompting Barenchi to
remark, “Oh, good Lord. [¶] . . . [¶] I have to read this too?” The
letter stated, inter alia, that Parker had never unduly influenced
Barenchi and that Barenchi did not want the Trust to be
changed.
7
In February 2019, on petition by the Public Guardian,
the court appointed the Public Guardian as the new
temporary conservator of Barenchi’s person and estate.
Soon after, the court authorized the Public Guardian to move
Barenchi back into her home (which was reportedly in
disrepair) when it was suitable.
In May 2019, the Public Guardian filed a petition to
revoke the Trust under the substituted judgment doctrine.4
The Public Guardian argued the Trust should be revoked
because: (1) Barenchi had lacked capacity at the time she
executed the Trust; (2) Barenchi presently lacked capacity to
continue serving as co-trustee; (3) Parker should not be
allowed to remain a trust beneficiary “as a suspected
financial abuser”; and (4) Parker had subjected Barenchi to
undue influence. The Public Guardian relied, inter alia, on
Dr. Homeier’s June 2016 capacity declaration indicating that
a mere month after the Trust’s execution, Barenchi lacked
capacity to make financial decisions and was at very high
risk of undue influence. The Public Guardian also alleged
4
The Trust was expressly revocable during Barenchi’s
lifetime by Barenchi herself or, with court approval, by a
conservator. Under the substituted judgment doctrine, codified
at section 2580 et seq., a conservator may petition the court for
authority to exercise the conservatee’s right to revoke a revocable
trust (or to take other proposed action) for the purpose, inter alia,
of benefiting the conservatee or the estate. (§ 2580, subds. (a)(1),
(b)(11); Murphy v. Murphy (2008) 164 Cal.App.4th 376, 394
(Murphy).)
8
that during a November 2018 interview, Barenchi denied
having executed any trust naming Parker as the beneficiary
“and stated in disbelief ‘why would I give away my stuff?’”
In opposition, Barenchi (through attorney Gordon)
argued the Trust’s revocation would not benefit Barenchi or
her estate, and instead would improperly contradict her wish
to leave her estate to Parker. In reply, the Public Guardian
argued revocation would allow it to obtain a reverse
mortgage to pay for 24-hour in-home care for Barenchi, as
necessary to move her from Parker’s apartment back into
her own house. Parker filed no papers.
In July 2019, the court held a hearing on the
revocation petition, at which all named parties and Parker
appeared. The court announced a tentative ruling granting
the petition: “The court finds that given Dr. Homeier’s
findings, based on the prior testimony at earlier hearings in
this case, including the establishment of the conservatorship
at an earlier hearing . . . , and the court’s observations about
Ms. Barenchi’s cognitive abilities at this time, the APS
investigation, the Public Guardian’s reports, and Ms.
Parker’s testimony at an earlier hearing [all] lead[] the court
to conclude that . . . this trust should be set aside, and that
the court is concerned about whether it constitutes elder
abuse. [¶] There’s been no evidence to rebut the
5
presumption of undue influence.[ ] Even without the
5
The court appeared to refer to the presumption of undue
influence that arises where a trust beneficiary actively
(Fn. is continued on the next page.)
9
presumption, there’s evidence to -- it’s not contradicted --
relating to her . . . susceptibility to undue influence. The
court does believe it’s part of the conservator’s job to make
sure that when ultimately Ms. Barenchi does pass, there’s
not a document that effectively would not be her wishes.”
The court added that the transfer of Barenchi’s house into
the trust estate appeared to be “wrongdoing,” and that
revocation of the trust would benefit Barenchi “in terms of
her ability to get a mortgage, and for getting the house back
in order, [as] the court previously indicated was appropriate
. . . .” The court acknowledged the relevance of Barenchi’s
opposition to the petition (through attorney Gordon) but
found her opposition outweighed by the other evidence it had
considered.
Gordon argued that instead of petitioning to revoke the
Trust, the Public Guardian should have petitioned merely to
substitute itself as the trustee, in which capacity it
assertedly could have obtained a reverse mortgage. The
court responded that it did not believe substitution of the
trustee would be sufficient to protect Barenchi’s interests
because it would not prevent the “seeming travesty” of
Parker receiving Barenchi’s house upon her death.
However, the court encouraged the Public Guardian to
petition for substituted judgment to establish a new estate
participated in the trust’s execution while in a confidential
relationship with the settlor. (See Bernard v. Foley (2006) 39
Cal.4th 794, 800.)
10
plan which might, if appropriate, provide for Parker to
receive some lesser portion of Barenchi’s estate.
Gordon further argued there was insufficient evidence
that at the time of the Trust’s execution, Barenchi lacked
capacity or was subject to undue influence. The court
observed that Gordon’s written opposition had neither
presented evidence regarding Barenchi’s capacity nor
requested an evidentiary hearing. In response, Gordon
orally requested an evidentiary hearing. The court observed
that granting the request would force Barenchi to incur
additional expense, and asked Gordon to identify a
reasonable basis for believing his position would prevail
after an evidentiary hearing. The court noted it was “not
trying to discourage” Gordon from requesting an evidentiary
hearing, adding, “So it’s your call. I’ll do whatever you
want.” Abandoning his request, Gordon responded that
because he believed Barenchi’s opposition to the petition
“would be a losing argument,” he declined to “spend her
money unnecessarily.”
With the court’s permission, Parker presented oral
argument (in propria persona) in opposition to the revocation
petition. Parker argued, inter alia, that the court was acting
on “prejudgment” in finding that her receipt of the trust
estate would be contrary to Barenchi’s interests. The court
denied that it had prejudged the issue, assuring Parker that
it had made its finding on the basis of the evidence and
11
arguments presented -- including by Parker herself -- during
the preceding years of litigation and the instant hearing.6
At the conclusion of the hearing, the court granted the
petition, revoking the Trust and authorizing the transfer of
all trust assets back into Barenchi’s name. Parker timely
appealed the revocation order.
C. Barenchi’s Death and Orders Concerning Her
Estate
Four months later, in October 2019, Barenchi died
intestate.7 That same month, Moore filed a petition to
recover approximately $95,000 in attorney fees from
Barenchi’s estate under section 2640.1, on the ground that
although the Public Guardian was not the particular
conservator Moore had sought, she had successfully
petitioned for the appointment of temporary conservators to
the benefit of Barenchi and her estate.8 No opposition was
6
As Moore and Noel acknowledge on appeal, Parker was
present at “most” hearings in the conservatorship case.
7
The court subsequently denied as moot Moore’s petition for
a permanent conservatorship.
8
“If a person has petitioned for the appointment of a
particular conservator and another conservator was appointed
while the petition was pending, . . . the person who petitioned for
the appointment of a conservator but was not appointed and that
person’s attorney may petition the court for an order fixing and
allowing compensation and reimbursement of costs, provided that
the court determines that the petition was filed in the best
(Fn. is continued on the next page.)
12
filed or made orally at the hearing. In January 2020, the
court granted the unopposed petition, awarding the full
amount of requested fees. Parker appealed the fee order.
That same month, respondent Noel (Barenchi’s
granddaughter) petitioned the court to appoint her
administrator of Barenchi’s estate. Noel alleged she was
entitled to the appointment because Barenchi had died
intestate and without any surviving spouse or children. (See
§ 8461 [“a person in the following relation to the decedent is
entitled to appointment as administrator in the following
order of priority: [¶] (a) Surviving spouse or domestic partner
. . . . [¶] (b) Children. [¶] (c) Grandchildren”].) No opposition
was filed or made orally at the hearing. In March 2020, the
court (Judge Gus T. May) issued a minute order granting the
unopposed petition. The next day, Parker appealed the
minute order.9
interests of the conservatee.” (§ 2640.1, subd. (a).) “Any
compensation and costs allowed shall be charged to the estate of
the conservatee.” (§ 2640.1, subd. (c)(2).)
9
After noticing her appeal, Parker filed a motion to set aside
the order appointing Noel as administrator. In June 2020, after a
hearing at which Parker was represented by counsel, the court
denied the motion on the grounds, inter alia, that Parker
effectively requested relief under section 473, subdivision (b) or
section 473.5, subdivision (b) of the Code of Civil Procedure, but
failed to satisfy each statute’s requirement to attach a copy of a
proposed pleading.
We grant Parker’s motion to augment the record with the
transcript of this hearing. We deny Parker’s request for judicial
(Fn. is continued on the next page.)
13
DISCUSSION
Parker contends the probate court erred in revoking
the Trust, awarding Moore attorney fees, and appointing
Noel as administrator of Barenchi’s estate. Moore and Noel
respond that Parker lacks standing to maintain her appeals
because she was neither aggrieved by the orders nor a party
of record, and that in any event, she fails to demonstrate
10
error on the merits.
A. Order Revoking the Trust
We conclude that although Parker has standing to
appeal the probate court’s order revoking the Trust, she fails
to show the court abused its discretion.
1. Standing
“[A]n appeal may be taken only by those who have
standing to appeal. The standing requirement is
jurisdictional.” (Eisenberg et al., Cal. Practice Guide: Civil
Appeals & Writs, supra, Ch. 2-D ¶ 2:270, italics omitted.)
notice of irrelevant materials. (See Eisenberg et al., Cal. Practice
Guide: Civil Appeals & Writs (The Rutter Group 2022) Ch. 5-B
¶ 5:156.2 [“Appellate courts will not take judicial notice of
matters irrelevant to the dispositive point on appeal”].)
10
Exercising our discretion to overlook any deficient citations
to the record, we reject Moore’s and Noel’s arguments that we
should disregard Parker’s opening brief, as well as Parker’s
argument that we should disregard portions of Moore’s
respondent’s brief.
14
“Code of Civil Procedure section 902 allows ‘[a]ny party
aggrieved’ to appeal from a judgment. Thus, ‘[t]he test is
twofold -- one must be both a party of record to the action
and aggrieved to have standing to appeal.’” (Turrieta v. Lyft,
Inc. (2021) 69 Cal.App.5th 955, 970 (Turrieta), review
granted Jan. 5, 2022, S271721.) However, “[t]he ‘party’
status requirement is more leniently applied in some probate
proceedings to confer appellate standing on certain nonparty
estate beneficiaries (i.e., beneficiaries who did not
participate in the probate proceeding): Provided the
beneficiaries are legally ‘aggrieved’ by the probate court
judgment or order, they can appeal despite the technical lack
of ‘party’ status.” (Eisenberg et al., Cal. Practice Guide: Civil
Appeals & Writs, supra, Ch. 2-D ¶ 2:278.) Moreover, as a
remedial statute, Code of Civil Procedure section 902
“‘should be liberally construed, with any doubts resolved in
favor of the right to appeal.’” (Id. at ¶ 2:283a, quoting Ajida
Technologies, Inc. v. Roos Instruments, Inc. (2001) 87
Cal.App.4th 534, 540.)
We conclude Parker has standing to appeal the order
revoking the Trust. Parker was aggrieved by the order
because the Trust’s revocation terminated her status as co-
trustee and sole beneficiary of the trust estate. Her status
as an aggrieved beneficiary alone may support standing
“despite [her] technical lack of ‘party’ status,” as courts have
recognized aggrieved beneficiaries’ standing even where they
“did not participate in the probate proceeding.” (Eisenberg
et al., Cal. Practice Guide: Civil Appeals & Writs, supra, Ch.
15
2-D ¶ 2:278; see also Estate of Zabriskie (1979) 96
Cal.App.3d 571, 575 [alternate beneficiary under decedent’s
will had standing to appeal order distributing estate, despite
alternate beneficiary’s failure to appear in probate court].)11
Moreover, Parker did participate in the proceeding. As
Moore and Noel acknowledge, Parker filed Dr. Fussell’s
capacity declaration and was present at “most” hearings in
the conservatorship case. At the revocation hearing, the
court not only granted Parker permission to present oral
argument but also relied on its recollection of information
she had presented at prior hearings. Liberally construing
Code of Civil Procedure section 902 in favor of the right to
appeal (see Ajida Technologies, Inc. v. Roos Instruments,
Inc., supra, 87 Cal.App.4th at 540), we conclude Parker has
12
standing to appeal the revocation order.
11
Moore and Noel fail to address this authority, which
contradicts their argument that Parker lacks standing to appeal
merely because she failed to file a written opposition to the
revocation petition.
12
We reject Parker’s contention that as a general rule,
“[n]onparties who are aggrieved by a judgment may appeal from
it.” In re FairWageLaw (2009) 176 Cal.App.4th 279, 285, on
which Parker relies, failed to address County of Alameda v.
Carleson (1971) 5 Cal.3d 730, in which our Supreme Court
applied the contrary rule that “only parties of record may appeal
. . . .” (Id. at 736; accord, Hernandez v. Restoration Hardware,
Inc. (2018) 4 Cal.5th 260, 263, 270 [unnamed class members lack
standing to appeal unless they intervene and become parties of
record].) “The weight of authority continues to follow County of
(Fn. is continued on the next page.)
16
2. Merits
Parker contends the probate court abused its discretion
in granting the Public Guardian’s petition to revoke the
Trust under the substituted judgment doctrine. We
disagree.13
A court may grant a conservator’s petition for
substituted judgment if it determines the conservatee “either
(1) is not opposed to the proposed action or (2) if opposed to
the proposed action, lacks legal capacity for the proposed
action.” (§ 2582, subd. (a).) The court is not compelled to
Alameda and require party of record status, subject to . . . a more
lenient approach in some probate proceedings [citation].”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs,
supra, Ch. 2-D ¶ 2:271.1; see also Estate of Zabriskie, supra, 96
Cal.App.3d at 575.) We apply this approach in reaching our
narrow conclusion that despite her lack of party status, under the
unusual circumstances of this case, Parker has standing to
appeal the revocation order.
13
In her opening brief (filed in propria persona), Parker
argues the revocation order is subject to de novo review “because
it pertains to statutory interpretation,” but cites no relevant
statute or authority. Under the substituted judgment statute
and caselaw, the order is subject to review for abuse of discretion.
(See § 2584 [“After hearing, the court, in its discretion, may
approve, modify and approve, or disapprove the [conservator’s]
proposed action” (italics added)]; Conservatorship of McDowell
(2004) 125 Cal.App.4th 659, 665 [“We review the trial court’s
order granting substituted judgment for abuse of discretion”],
disapproved on another ground by Bernard v. Foley (2006) 39
Cal.4th 794.)
17
hold an evidentiary hearing, but “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.” (Conservatorship
of McElroy (2002) 104 Cal.App.4th 536, 554; accord, Murphy,
supra, 164 Cal.App.4th at 398.) In determining whether to
authorize the proposed action, “the court shall take into
consideration all the relevant circumstances, which may
include, but are not limited to, the following: [¶] (a) Whether
the conservatee has legal capacity for the proposed
transaction . . . . [¶] . . . [¶] (e) The wishes of the
conservatee. [¶] . . . [¶] (g) The manner in which the estate
would devolve upon the conservatee’s death . . . [¶] . . . [¶]
(k) The 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] (m) Whether 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.)
“‘A given set of facts may permit more than one rational
substituted-judgment decision. [¶] The superior court will
(as the conservatee would) obtain information, and hear
applications and suggestions, from various sources, and will
or should obtain a sense of the situation . . . inevitably more
18
enlightened than any reviewing court could hope to obtain.
In sum the superior court, when called upon to substitute its
judgment for that of the conservatee, will be “a
presumptively more capable decisionmaker” and should be
given broad latitude.’” (Murphy, supra, 164 Cal.App.4th at
397.)
We conclude the court acted within its broad discretion
in revoking the Trust. In expressly finding that Barenchi’s
opposition to the revocation petition (through appointed
counsel) was not dispositive, the court impliedly found that
Barenchi lacked capacity to revoke the Trust herself. (See
§ 2582, subd. (a) [court may authorize proposed action over
conservatee’s opposition if conservatee “lacks legal capacity
regarding the proposed action”]; cf. § 2583 [non-exhaustive
list of factors relevant to court’s exercise of discretion
includes not only conservatee’s wishes, but also whether
conservatee has capacity to take proposed action and
likelihood he or she would do so, as reasonably prudent
person, if he or she had capacity].) The court further found
that revocation of the Trust would benefit Barenchi by
preventing her estate -- including her house -- from passing
to Parker, whom the elderly Barenchi had met mere months
before the Trust’s execution while recovering from an illness,
and who had subjected Barenchi to undue influence and
“elder abuse.” (See § 2583 [factors relevant to court’s
exercise of discretion include how estate will devolve upon
conservatee’s death, and whether beneficiary committed
financial abuse against conservatee after conservatee was
19
unable to manage financial resources or resist undue
influence].)14 These findings were adequately supported by
the information before the court, including: (1) Dr. Homeier’s
June 2016 declaration (on which the court expressly relied)
indicating that a mere month after Barenchi executed the
Trust, she lacked testamentary capacity and was at very
high risk of undue influence; (2) Barenchi’s statements to Dr.
Homeier indicating that she had not wished to change her
doctor and did not recall or understand that Parker had
already made such a change; (3) Barenchi’s unfamiliarity in
October 2016 with a letter she had purportedly written in
defense of Parker and believed she “ha[d] to” read to the
court; (4) Barenchi’s statements to the Public Guardian in
November 2018 indicating she did not recall executing the
Trust and did not want to “‘give away [her] stuff’”; and
(5) Freedman-Harvey’s November 2018 declaration echoing
Dr. Homeier’s earlier opinions and reporting that Barenchi
was “almost too cognitively impaired to evaluate.” On this
14
As an alternative ground for finding that the Trust’s
revocation would benefit Barenchi, the court accepted the Public
Guardian’s argument that revocation would enable the Public
Guardian to obtain a reverse mortgage, as necessary to move
Barenchi back into her house with paid care. Parker asserts the
Public Guardian was mistaken concerning the Trust’s impeding
its ability to obtain a reverse mortgage, but cites no pertinent
evidence or authority, and thus forfeits the issue. (See, e.g., In re
Phoenix H. (2009) 47 Cal.4th 835, 845 [“‘“Contentions supported
neither by argument nor by citation of authority are deemed to be
without foundation and to have been abandoned”’”].)
20
record, we conclude the Trust’s revocation was within the
“‘broad latitude’” entrusted to the court. (Murphy, supra,
164 Cal.App.4th at 397.)
We reject Parker’s contention that the information
before the court was insufficient, requiring it to conduct a
full evidentiary hearing. Contrary to Parker’s assertion that
the court “strongly discouraged” Barenchi’s counsel from
requesting an evidentiary hearing, the court assured counsel
it would hold such a hearing if counsel wished. The court
merely asked counsel to identify some basis for believing
Barenchi’s opposition to the petition might prevail after an
evidentiary hearing. Rather than make an offer of proof,
counsel abandoned his request. On appeal, Parker similarly
fails to identify any additional information the court
assertedly should have received at an evidentiary hearing.
She thus fails to show the court abused its discretion in
relying on the ample information before it, including the
information summarized above. (See Conservatorship of
McElroy, supra, 104 Cal.App.4th at 555 [in granting
substituted judgment, trial court did not abuse its discretion
in concluding “that the information before it was sufficient
and, having heard the offers of proof, that a full contested
evidentiary hearing was unnecessary”].)
We also reject Parker’s contention that the court acted
on an unspecified form of bias against her. Parker’s sole
purported evidence of bias is the court’s finding that the
Trust’s revocation would benefit Barenchi by preventing
Parker from receiving the entire estate upon Barenchi’s
21
death.15 This single adverse finding is insufficient to suggest
even an appearance of bias, particularly in light of the
evidence supporting it. (See Brown v. American Bicycle
Group, LLC (2014) 224 Cal.App.4th 665, 674 [“The mere fact
that the trial court issued rulings adverse to [plaintiff] on
several matters in this case, even assuming one or more of
those rulings were erroneous, does not indicate an
appearance of bias, much less demonstrate actual bias”].)
Nothing in the record contradicts the court’s assurance to
Parker that it was not acting on “prejudgment,” but instead
on the evidence and arguments presented.
For the first time in her reply brief, Parker contends
that Barenchi had the capacity to execute the Trust in May
2016, and that the court thus erred in revoking it more than
three years later. Parker has forfeited this argument for two
independent reasons. First, she failed to raise the argument
in her opening brief. (See People v. Silveria and Travis
(2020) 10 Cal.5th 195, 255 [“‘“It is axiomatic that arguments
made for the first time in a reply brief will not be
entertained because of the unfairness to the other party”’”].)
Second, even in her reply brief, Parker cites no evidence
other than Dr. Fussell’s conclusory declaration opining that
Barenchi retained medical capacity. Parker fails to address
Dr. Homeier’s earlier and more detailed declaration
15
The court observed Parker might, if appropriate, receive a
lesser share of Barenchi’s estate under a new estate plan, which
it encouraged the Public Guardian to establish.
22
indicating Barenchi lacked medical and testamentary
capacity (on which the court expressly relied), as well as
other evidence supporting the court’s ruling. “An appellant
. . . who cites and discusses only evidence in her favor fails to
demonstrate any error and waives the contention that the
evidence is insufficient to support the judgment.” (Rayii v.
Gatica (2013) 218 Cal.App.4th 1402, 1408.) In sum, we
conclude the court acted within its broad discretion in
revoking the Trust, and affirm the revocation order.16
B. Orders Concerning Barenchi’s Estate
We conclude that Parker lacks standing to maintain
her appeals from the probate court’s orders awarding Moore
attorney fees from Barenchi’s estate and appointing Noel
administrator thereof. As noted, “‘one must be both a party
of record to the action and aggrieved to have standing to
appeal.’” (Turrieta, supra, 69 Cal.App.5th at 970, rev.gr.,
italics added.) “A party is aggrieved ‘only if its “rights or
interests are injuriously affected by the judgment.”’
[Citation.] The aggrieved party’s interest ‘“‘must be
immediate, pecuniary, and substantial and not nominal or a
remote consequence of the judgment.’”’” (Id. at 971.)
Moreover, the interest must be “legally cognizable.” (In re
Pacific Std. Life Ins. Co. (1992) 9 Cal.App.4th 1197, 1201;
16
We need not address Noel’s argument that Parker forfeited
her challenges to the revocation order by failing to file a written
opposition in the probate court.
23
accord, Eisenberg et al., Cal. Practice Guide: Civil Appeals &
Writs, supra, Ch. 2-D ¶ 2:283.)
Even assuming, arguendo, that Parker satisfied the
party-of-record requirement or an exception thereto, we
conclude she lacks standing to maintain her appeals from
the fee order and the appointment order because she was not
aggrieved by either ruling. In the wake of the Trust’s
revocation (which we affirm), Parker had no cognizable
interest in Barenchi’s estate or the former trust property
therein. Thus, she was not aggrieved by the order requiring
the estate to pay Moore’s attorney fees. (See In re Estate of
Thor (1935) 11 Cal.App.2d 37, 38 [decedent’s disinherited
husband was stranger to her estate and thus lacked
standing to appeal order approving executor’s account and
distributing estate]; accord, Estate of Bartsch (2011) 193
Cal.App.4th 885, 890-891.) Nor was Parker aggrieved by the
order appointing Noel as administrator of the estate. As
Barenchi’s granddaughter, Noel had absolute priority over
Parker (a non-relative). (See § 8461 [grandchildren have
higher priority for appointment than anyone but spouses,
domestic partners, and children]; Ross & Cohen, Cal.
Practice Guide: Probate (The Rutter Group 2022) Ch. 3-
G ¶ 3:353 [“The statutory priority rankings are absolute; so
long as a person in a higher priority class is otherwise
eligible [citation] and has not waived the right to priority of
appointment, the court has no discretion to appoint someone
in a lower class”].) Because Parker had no “legally
cognizable” interest in being appointed in Noel’s stead, she
24
was not aggrieved by Noel’s appointment. (In re Pacific Std.
Life Ins. Co., supra, 9 Cal.App.4th at 1201.) In sum, we
conclude that Parker lacks standing to maintain her appeals
from the fee order and the appointment order, and that we
must therefore dismiss those appeals for lack of
jurisdiction.17 (See Eisenberg et al., Cal. Practice Guide:
Civil Appeals & Writs, supra, Ch. 2-D ¶ 2:270.)
17
Even had we possessed jurisdiction over the appeals, we
would have found no error. Parker has forfeited any contention
that the probate court erred in granting Moore’s unopposed
petition for attorney fees under section 2640.1 by failing to cite
the statute or any authority construing it. (See South of Market
Community Action Network v. City and County of San Francisco
(2019) 33 Cal.App.5th 321, 349 [“failure to cite pertinent legal
authority is grounds for appellate court to reject party’s
argument”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief
must, where possible, “support each point . . . by citation of
authority”].) Parker similarly fails to address the statute
conferring on Noel absolute priority for appointment as
administrator of Barenchi’s estate, and thus fails to show the
court erred in granting Noel’s unopposed petition for the
appointment. (See § 8461; Ross & Cohen, Cal. Practice Guide:
Probate, supra, Ch. 3-G ¶ 3:353.)
25
DISPOSITION
The order revoking the Trust is affirmed. Parker’s
appeals from the order awarding Moore attorney fees and
the order appointing Noel administrator of Barenchi’s estate
are dismissed. Moore and Noel are awarded their costs on
appeal. The Public Guardian shall bear its own costs on
appeal, if any.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
CURREY, J.
STONE, J.*
________________________________________________________
*Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
26