Dennis v. Ho CA2/4 ( 2020 )

Filed 11/20/20 Dennis v. Ho CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARLENE DENNIS, B304459
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BP145487)
v.
JANEY HO,
Defendant and Appellant.
APPEAL from an order of the Superior Court for Los Angeles
County, Daniel Juarez, Judge. Affirmed.
SW Smyth and Andrew E. Smyth for Defendant and Appellant.
Lurie, Zepeda, Schmalz, Hogan & Martin, Maximillian D. Casillas
and Troy L. Martin for Plaintiff and Respondent.
This is the third appeal in this case involving Janey Ho (Janey1)
and the conservator of her mother’s estate, Marlene Dennis (the
1 Because there are multiple members of the Ho family who are involved
in this case, we will refer to the family members by their first names to avoid
confusion.
conservator). In the first appeal (Dennis v. Ho (Feb. 28, 2018, B277268)
[nonpub. opn.] (Dennis I)), we addressed the probate court’s order
granting the predecessor conservator’s Probate Code2 section 850
petition. The probate court found that Janey, in bad faith, wrongfully
took, concealed, and disposed of funds belonging to her mother, and
ordered Janey to return those funds and to transfer to the conservator
property she purchased with those funds. In Dennis I, we agreed that
Janey was not entitled to keep the funds, but we held that the amount
she was ordered to return was not supported by the evidence.
Therefore, we reversed in part and remanded the case with directions to
the probate court to determine the correct amount.
In the second appeal (Dennis v. Ho (Sept. 6, 2018, B282799)
[nonpub. opn.] (Dennis II).), we addressed the probate court’s order
granting the conservator’s petition for a substituted judgment to create
an estate plan. But because the conservator’s petition was based
largely on the value of the conservatee’s estate before our decision in
the Dennis I, we reversed the probate court’s order and remanded for
reconsideration after the probate court complied with our directions on
remand in Dennis I.
Following remand in both appeals, the probate court held
proceedings to determine the amount Janey was required to return to
the conservator. She did not appeal from the order setting forth that
determination. The court then held further proceedings on the
2 Further undesignated statutory references are to the Probate Code.
2
remanded petition for substituted judgment and on an issue that had
been deferred in the original proceeding, i.e., Janey’s liability for so-
called section 859 damages based upon the finding that Janey had acted
in bad faith. The probate court granted the petition and found Janey
liable under section 859 for twice the amount she was found to have
taken from her mother. Janey now appeals from this order.
In this appeal, Janey attempts to challenge the proceedings on
remand from Dennis I, despite having failed to timely appeal from the
order from those proceedings. She also attempts to challenge the bad
faith finding made in the order that was the subject of Dennis I, but
that finding (which Janey did not challenge in Dennis I) was the basis
for a subsequent award of attorney fees to the conservator, which award
she did not timely appeal. Therefore, she is precluded from challenging
the bad faith finding in this appeal. The remaining issues Janey raises
are based upon misunderstandings of our prior opinions and the
probate court’s order. In short, she fails to raise any meritorious
argument for reversal. Accordingly, we affirm the probate court’s order.
BACKGROUND3
A. Facts and Proceedings Leading to Dennis I and Dennis II
In January 2010, Janey’s mother, Tanya Ho, signed a durable
power of attorney appointing her three children—Janey, Lisa Tang Ho,
3 We take some of the background facts from our opinions in Dennis I
and Dennis II.
3
and George Tang Ho—to serve as her attorneys-in-fact. Under the
durable power of attorney, all three appointees were required to act
unanimously. (Dennis I, supra, B277268, at p. 2.) Some months later,
Tanya went into a vegetative state after undergoing brain surgery for
hydrocephalus. In November 2010, certain accounts in Tanya’s name
were liquidated and the funds transferred into accounts jointly owned
by Janey and Tanya. Those funds then were used, along with some
funds contributed by Janey, to purchase a $650,000 property in Playa
Vista, California (the Playa Vista property). Title to the Playa Vista
property was entered in Janey’s name. (Id. at pp. 2-3.)
In 2014, Tanya was placed under conservatorship, with Jeffrey
Siegel appointed as conservator. (Dennis I, supra, B277268, at p. 4.) In
October 2015, Janey obtained a $650,000 loan secured by a deed of trust
against the Playa Vista property, and used the proceeds to buy a
property in Hawaii, renovate some other properties, pay bills, and pay
for Tanya’s care. (Ibid.) Siegel, as conservator, filed a petition under
section 850 (the section 850 petition) to determine title to the Playa
Vista property, to declare the property held by the conservator, to order
Janey to return all funds she received from the loan secured by the deed
of trust on the property, to order Janey to provide an accounting for all
monies and properties taken from Tanya, and for “double damage
pursuant to Probate Code §859” and attorney fees and costs.
The probate court granted the section 850 petition on June 27,
2016. It found that Janey violated section 4232’s prohibition against
self-dealing by an attorney-in-fact, section 4233’s proscription against
commingling of funds, and section 5301’s requirement that shares in a
4
joint tenancy account be apportioned according to the amounts
contributed. The court ordered: (1) that Janey transfer the Playa Vista
property to the conservator; (2) that Janey return to the
conservatorship estate the funds she received from the loan secured by
the deed of trust on the Playa Vista property; (3) that Janey provide an
account of the funds and property taken from Tanya; (4) that the funds
from the loan secured by the deed of trust be placed in a blocked
account; (5) that any additional funds from the loans secured by deeds
of trust against the property4 be accounted for, and that the Hawaii
property purchased with some of those funds be transferred to Tanya;
(6) that Janey be restrained from further encumbering the Playa Vista
property; (7) that damages against Janey for bad faith be deferred; and
(8) that Janey reimburse conservator Siegel for his reasonable attorney
fees and costs under section 859 “based upon the finding that [Janey],
in bad faith, wrongfully took[,] concealed, and disposed of property
belonging to Conservatee Tanya Ho.”
On August 25, 2016, Janey filed a notice of appeal from probate
court’s order. A month later, conservator Siegel filed a motion for
attorney fees under section 859 based upon the probate court’s finding
that Janey, in bad faith, wrongfully took, concealed, and disposed of
property belonging to Tanya. Janey did not file an opposition and did
not appear at the hearing on the motion. The court granted the motion
4 There was evidence that Janey obtained an additional loan secured by
a deed of trust against the Playa Vista property, but that loan never was
funded and the lender agreed to remove the deed of trust. (Dennis I, supra,
B277268, at p. 4.)
5
and ordered Janey to pay more than $94,000 to the conservator. A
notice of entry of the order was served on Janey on November 3, 2016.
Janey did not file a notice of appeal from this order.
In the meantime, in October 2016, the conservator filed a petition
for a substituted judgment to create an estate plan and to fund a living
trust for Tanya, with a neutral fiduciary as trustee (the substituted
judgment petition). (Dennis II, supra, B282799, at p. 3.) The probate
court granted the petition, and Janey appealed. (Id. at p. 4.)
B. Our Opinions in Dennis I and Dennis II
On February 28, 2018, we issued our opinion in Dennis I, supra,
B277268. In that opinion, we listed the arguments Janey raised:
(1) that the probate court erred by failing to consider that Tanya’s
durable power of attorney allowed gifts to be made if all three
attorneys-in-fact agreed, and that the funds used to purchase the Playa
Vista property was a gift to Janey; and (2) that the probate court erred
in relying on the provision in the current version of section 5301 that
shares in a joint tenancy account be apportioned according to the
amounts contributed, because under the version of section 5301 in effect
at the time she withdrew the funds to purchase the Playa Vista
property, the funds became a gift to her. (Dennis I, supra, B277268, at
p. 6.)
6
Although we rejected those arguments5 (Dennis I, supra, B277268,
at pp. 10-11, 13), we found that the evidence did not support some parts
of the probate court’s order. Specifically, we concluded that, although
the record supported the order to repay at least some of the funds Janey
received from the loan secured by the deed of trust on the Playa Vista
property, the record did not support (1) the order to transfer title of the
property to the conservator, (2) the order that Janey repay the full
amount she obtained (we held she must be credited for the amount she
contributed to purchase the property), or (3) the order that Janey return
both the amount she obtained from the loan and the Hawaii property
she bought with some of the loan proceeds. (Id. at pp. 13-15.)
Therefore, we reversed the probate court’s order “to the extent that it
orders [Janey] to transfer the Playa Vista property to the conservator,
to repay the full $650,000 loan, and to return the property she
purchased with the loan.” (Id. at p. 16.) We remanded the matter to
the probate court “to determine the amount [Janey] actually
contributed out of her own funds to the purchase of the Playa Vista
property and then to deduct that amount from whatever total the court
orders her to repay. After determining how much [Janey] contributed
from her own funds to purchase Playa Vista, the court further shall
determine if appellant should transfer [to the conservator] the [Hawaii
property] she purchased with the proceeds of the $650,000 loan . . . and
5 Although we found that the amendment to section 5301 did not apply
retroactively, we found that funds she withdrew from the joint account did
not pass to Janey by way of gift because she was bound by the terms of the
durable power of attorney. (Dennis I, supra, B277268, at pp. 10-11.)
7
repay the remaining difference, or if she should keep the [Hawaii
property] and repay the entire $650,000 principal plus interest—again,
with credit for her contribution to Playa Vista.” (Ibid.)
Several months later, on September 6, 2018, we issued our opinion
in Janey’s appeal from the probate court’s order granting the
substituted judgment petition. We concluded that, given our partial
reversal of the probate court’s order granting the conservator’s section
850 petition, which partial reversal significantly changed the asserted
value of the conservatee’s estate, there was insufficient evidence to
support the substituted judgment petition. (Dennis II, supra, B282799,
at p. 11.) Therefore, we reversed the order and remanded the matter
for reconsideration based upon the probate court’s determination on the
remand from the earlier appeal in Dennis I.
C. Proceedings on Remand6
After we issued our opinion in Dennis II, the probate court held a
two-day trial to determine the amount Janey contributed to the
purchase of the Playa Vista property, as we directed in our disposition
in Dennis I. The conservator presented evidence, including the
uncontested testimony of a forensic accountant who traced the funds
Janey used to purchase the Playa Vista property, establishing that
Janey contributed $149,001.21 of her own funds towards the purchase
6 We note that the proceedings on remand were held before a different
judge than the judge who presided over the original petitions. Also, in light
of the few cognizable arguments Janey raises in this appeal, we need not set
out the facts regarding the proceedings in much detail.
8
price of $651,351.41. Therefore, the probate court concluded that Janey
must repay $502,350.20 to the conservatee’s estate. The court issued its
order setting out its reasoning and conclusions on July 17, 2019. Janey
was served with notice of entry of the order on October 10, 2019. Janey
did not file a notice of appeal from the July 17, 2019 order.
After the probate court issued its July 17, 2019 order, the parties
submitted briefs setting forth their positions on the substituted
judgment petition and the issue of section 859 “damages,” which issue
the court had deferred when it issued its original order on the section
850 petition that was the subject of Dennis I. In her pre-hearing brief,
Janey focused primarily upon her argument that she did not act in bad
faith and had done nothing wrong, and that this court, in Dennis I, had
found that her actions had complied with the durable power of attorney
and had benefitted Tanya; therefore, she contended that the
conservatorship should be terminated.
The probate court held a hearing on the matter on October 1,
2019, and ordered closing argument by written brief.7 The conservator
presented evidence showing the probate, professional, and attorney fees
the conservatee’s estate would save if the substituted judgment petition
7 There is no reporter’s transcript of the October 1, 2019 hearing, so we
do not know what (if any) evidence was presented at the hearing. In
addition, although Janey included both parties’ pre-hearing briefs in her
appellant’s appendix, she did not include the closing briefs, nor did she
include the probate court’s order from which she appeals. The conservator
included the conservator’s closing and reply briefs (but not Janey’s closing
brief) and the order that is the subject of this appeal. Therefore, our
description of the arguments made and evidence presented is based upon the
conservator’s briefs and the probate court’s order.
9
were granted, based upon the valuation of the assets belonging to or
owned by the estate, which assets would be subject to probate upon
Tanya’s death if the petition were not granted. The court concluded it
was in the best interest of the conservatee’s estate to grant the petition
because it would save probate fees, maintain the dispositive provisions
of Tanya’s will, and protect the estate and Tanya’s wishes by having a
neutral fiduciary as trustee. The court found it was reasonable to
conclude that Janey was unfit to act as a fiduciary for Tanya’s estate
because she “has committed bad acts against [the] estate.”
Addressing the imposition of liability under section 859, the
probate court noted that the original judge found that Janey had in bad
faith wrongfully taken, concealed, or disposed of property belonging to
Tanya. The court observed that this court did not reverse that finding
or otherwise rule on it in Dennis I. Therefore, it concluded that Janey
was liable under section 859 for twice the value of the property
recovered. Accordingly, the probate court ordered Janey to pay to the
conservatorship estate a total of $1,004,700.40, which is “inclusive of
the reimbursement ordered by the instant trial court on July 17, 2019.”
The probate court issued its order on the substituted judgment
petition and liability under section 859 on December 20, 2019. Janey
timely filed a notice of appeal from that order.
DISCUSSION
It is difficult to concisely state the issues Janey purports to raise
on appeal. In her appellant’s opening brief, she includes a heading for
“ISSUES ON APPEAL” in which she lists eight issues. Her argument
10
section, however, does not track those precise issues. Combining the
eight issues she lists with the (by our count) nine issues she actually
raises in the body of her brief, we can group all into three categories:
(1) challenges to the probate court’s determination of the amount Janey
contributed to the purchase of the Playa Vista property; (2) challenges
to the imposition of liability under section 859; and (3) challenges to the
granting of the substituted judgment petition. We address each
category in turn.
A. Challenges to the Determination of Janey’s Contribution
Janey raises several arguments in which she contends the probate
court erred, either procedurally or factually, in determining the amount
she contributed to the purchase of the Playa Vista property. None of
those issues is properly before us because Janey did not timely file a
notice of appeal from the July 17, 2019 order in which the probate court
made its ruling. Notice of that order was served by mail on Janey on
October 10, 2019. Janey had 60 days from that date to file a notice of
appeal. (Cal. Rules of Court, rule 8.104(a)(1)(A).) She did not do so.
It is well established that “if an order is appealable, appeal must
be taken or the right to appellate review is forfeited.” (In re Baycol
Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Code of Civil Procedure
section 904.1, subdivision (a)(10) provides that an appeal may be taken
from any order made appealable by the Probate Code. And Probate
Code section 1300, subdivision (k) provides that an appeal may be taken
from the making of, or refusal to make, an order “[a]djudicating the
merits of a claim made under Part 19 (commencing with Section 850) of
11
Division 2.” Because the probate court’s July 17, 2019 order was an
order adjudicating the merits of the conservator’s section 850 petition
(albeit, a limited component of the merits, the other components having
been affirmed on appeal in Dennis I), it was an appealable order.
Because Janey did not timely appeal from the order she forfeited any
issues arising from that order.
B. Challenges to Liability Under Section 859
Most of the issues Janey raises in her opening brief relate to the
probate court’s imposition of liability under section 859 for twice the
value of the property recovered by the section 850 petition She is
precluded from asserting many of the issues she raises; the remainder
have no merit.
Section 859 provides, in relevant part: “If a court finds that a
person has in bad faith wrongfully taken, concealed, or disposed of
property belonging to a conservatee, a minor, an elder, a dependent
adult, a trust, or the estate of a decedent, . . . the person shall be liable
for twice the value of the property recovered by an action under this
part. In addition, except as otherwise required by law, . . . the person
may, in the court’s discretion, be liable for reasonable attorney’s fees
and costs. The remedies provided in this section shall be in addition to
any other remedies available in law to a person authorized to bring an
action pursuant to this part.”8
8 Many courts and practitioners refer to this provision informally as a
“double damages” provision. (See Estate of Ashlock (2020) 45 Cal.App.5th
12As noted, the original probate court deferred determining section
859 “damages,” but found that Janey was required to pay the
conservator’s reasonable attorney fees, based upon its finding that she
“in bad faith, wrongfully took[,] concealed, and disposed of property
belonging to Conservatee Tanya Ho.” After conducting the proceedings
on remand as directed in Dennis I and Dennis II, the current probate
court took up the deferred issue of “damages” under section 859. The
court stated: “given the original trial court’s finding and ruling and
noting that the Court of Appeal did not reverse this finding and order or
otherwise rule on it[,] [i]t is therefore appropriate to impose those
damages now.”
Janey contends that the probate court erred because it was not
bound by the original finding that she acted in bad faith in ruling on
liability under section 859 because (1) the issue of liability under section
859 was not adjudicated in Dennis I; (2) Dennis I did not require the
probate court to adopt the findings and rulings of the original judge;
and (3) this court made an implicit finding of no bad faith in Dennis I.
She also contends there was insufficient evidence to support liability
under section 859 because she did nothing wrong. Finally, she contends
the probate court improperly calculated the amount for which she is
liable. She is mistaken.
First, there is no dispute that we did not directly address the bad
faith finding in Dennis I. But Janey’s assertion that we implicitly found
1066, 1074.) In fact, the liability imposed does not represent damages, but
rather a penalty for wrongful conduct.
13
she did not act in bad faith is patently false. While we did not directly
address the bad faith finding—because Janey did not directly challenge
that finding in her appeal—we did affirm the probate court’s finding
that Janey violated the terms of the durable power of attorney, as well
as section 4232’s prohibition against self-dealing by an attorney-in-fact
and section 4233’s proscription against commingling of funds. The fact
that we did not also specifically affirm the finding of bad faith does not
in any way suggest that we intended to reverse that finding.
Second, we need not address whether the probate court was
required under Dennis I to follow the original probate court’s finding of
bad faith, because that finding of bad faith is now final as a result of
Janey’s failure to appeal from the subsequent order awarding $94,000
in attorney fees to the conservator. As noted, after the original probate
court issued its order granting the section 850 petition in which it found
that the conservator was entitled to attorney fees under section 859
based upon its finding of bad faith, the conservator brought a motion
asking for an award of fees based upon those findings. Janey did not
oppose the motion and did not appeal from the order granting the
conservator’s motion. Therefore, that fee award and the findings upon
which it was based became final on January 2, 2017—i.e., 60 days after
Janey was served with the notice of entry of the order (Cal. Rules of
Court, rule 8.104(a)(1)(A))—and could not be relitigated. (See Key v.
Tyler (2019) 34 Cal.App.5th 505, 532, 534 [collateral estoppel, or issue
preclusion, applies to probate court’s prior finding where an identical
issue was actually litigated and necessarily decided in a prior
proceeding against the same party].) In short, the probate court
14
properly found it was bound by the original court’s bad faith finding and
rejected Janey’s argument that she did nothing wrong and did not act in
bad faith.
Finally, Janey’s contentions that the probate court improperly
calculated the amount for which she is liable under section 859 are
simply wrong. In her list of issues on appeal, Janey appears to contend
the probate court erred by doubling the reimbursement amount (for the
section 859 liability) and adding that to the reimbursement amount.
While there is a conflict among the appellate courts regarding whether
this is the proper method to determine liability under section 859
(compare Estate of Ashlock, supra, 45 Cal.App.5th at pp. 1074-1077 [the
liability under section 859, i.e., twice the value of the property returned,
is in addition to the return of the property taken], with Conservatorship
of Ribal (2019) 31 Cal.App.5th 519, 525 [total liability with imposition
of section 859 liability is double the value of the property returned]), the
fact is that the probate court in this case in its final order expressly
followed Ribal and found that Janey’s total liability, including the
amount she was ordered to return plus section 859 liability, was double
the amount she was ordered to return. Similarly, although Janey
appears to contend that in determining the amount she must pay to the
conservatorship estate the probate court did not apply the credit she
was due for the funds she contributed to the purchase of the Playa Vista
property until after the court doubled the entire $650,000 she obtained
from the loan, the order shows this is not true. The December 20, 2019
order clearly shows that the probate court doubled the amount it had
determined in its July 17, 2019 order that Janey was required to return
15
to the conservatorship estate, and the July 17, 2019 order clearly shows
that the probate court determined that amount by applying the credit
against the total price paid for the Playa Vista property.9
C. Challenges to Granting of the Substituted Judgment Petition
Relying entirely upon her assertion that she did engage in any bad
faith wrongdoing—and that we so found in Dennis I—Janey argues
there is no basis to replace her as executor of Tanya’s will and no basis
for the probate court to have found that the conservator, in seeking a
substituted judgment, is acting in Tanya’s best interest and carrying
out her wishes. As discussed in section B., ante, the finding that Janey
acted in bad faith is final, and Janey is collaterally estopped from
challenging it in this appeal. Therefore, her arguments fail.
//
//
DISPOSITION
The December 20, 2019 order is affirmed. The conservator shall
recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
9 The parties had agreed that, in light of the totality of our ruling in
Dennis I, the credit should be applied against the price paid to acquire the
Playa Vista property.
16
MANELLA, P. J.
CURREY, J.
17