Conservatorship of Tanaka CA2/5 ( 2014 )

Filed 4/30/14 Conservatorship of Tanaka CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
Conservatorship of the Person and Estate of B239292
JEAN MIHO TANAKA.
(Los Angeles County Super. Ct.
No. BP117240)
JEANNIE TANAKA,
Petitioner and Appellant,
v.
LINDA COTTERMAN,
Objector and Respondent.
APPEAL from the orders of the Superior Court of Los Angeles, Reva Goetz,
Judge. Affirmed.
Alison Minet Adams for Petitioner and Appellant.
Schomer Law Group, Scott P. Schomer and Megan Waugh for Objector and
Respondent.
_________________________
Petitioner and appellant Jeannie Tanaka appeals from orders declaring her a
vexatious litigant, denying part of her request for accommodations, confirming a
temporary conservator’s final account, and appointing a conservator for her mother Jean
Miho Tanaka.1 On appeal, Jeannie contends: (1) the vexatious litigant prefiling order
pursuant to Probate Code section 1970 and Code of Civil Procedure section 391.7 must
be vacated because she was represented by counsel at all times; (2) an order approving
the final account of Carol White should be vacated; (3) letters of conservatorship issued
to Linda Cotterman should be revoked; and (4) her request for accommodations was
improperly denied in part.
The record on appeal is inadequate to review the issues presented. To the extent
the record allows review, we hold as follows. A vexatious litigant determination under
Probate Code section 1970 is not limited to filings made in propria persona. Jeannie has
failed to show any error with respect to the approval of White’s final account, and the
trial court’s appointment of Cotterman is supported by substantial evidence. Jeannie has
not shown that the trial court erred by denying part of her second request for
accommodations, and in any event, the denial had no impact on the appealable orders in
this case. Therefore, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Conservatee’s three children are Christine Tanaka, Wesley Tanaka, and Jeannie.
In June 2009, Christine and Wesley filed a petition to have a conservator appointed for
their mother. In July 2009, Jeannie filed a competing petition to be appointed
conservator. Jeannie is an attorney, but she was represented by counsel during the
proceedings.
1Because several parties share the last name Tanaka, they will be referred to
individually by their first names.
2
Carol White was appointed as temporary conservator. White resigned in May
2010, and Linda Cotterman was appointed as temporary conservator in June 2010. White
filed a petition for a first and final account on December 17, 2010.
A trial was held on dates in February, March and April 2011, to determine the
competing conservatorship petitions and the appropriate residence for the conservatee.
On June 15, 2011, the trial court issued a lengthy and thorough tentative statement of
decision containing the following findings. Cotterman took conservatee to her primary
doctor for care on four occasions in 2010 and 2011. Jeannie requested conservatee
continue care under this doctor and the trial court accommodated Jeannie’s request. In
addition, Cotterman took conservatee to see Dr. Cathie-Ann Lippman at Jeannie’s request
and in the presence of Jeannie and her attorney, to discuss supplements. Dr. Lippman
recommended certain supplements, but had not seen conservatee for a while. Cotterman
discussed the supplement recommendations with conservatee’s primary doctor, who felt
the supplements were not helpful or harmful, and therefore, were unnecessary.
Jeannie complained about her mother’s dental health in 2009. Cotterman took
conservatee to her dentist, Dr. Thomas Edwards, on five occasions. Although Jeannie
had full control of conservatee’s care until July 2009, conservatee had not seen Dr.
Edwards since 2004.
The court concluded that Jeannie put her belief system and interests before those
of conservatee. Several credible witnesses testified that Jeannie argued with the
temporary conservators in front of conservatee. Although Jeannie denied that her mother
became tired after Jeannie’s longer visits, credible testimony from three caregivers
supported finding that her mother was fatigued after these visits. Jeannie repeatedly
violated court orders intended to protect conservatee. Jeannie’s actions led the court to
find her petitioning activity was more about the impact on her and not on the
conservatee’s best interests.
During the time Cotterman served as conservator, she retained people to clean the
conservatee’s home and ensure utilities were working, took conservatee for multiple
medical visits, accommodated Jeannie’s scheduled visits with and without a monitor,
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supervised conservatee’s caregivers, and navigated extreme conflict. The court found
Cotterman acted in the best interest of the conservatee, and other than doing her job, had
no interest in taking advantage of conservatee or furthering an agenda.
In conclusion, the court found Cotterman was suitable and qualified, and
appointed Cotterman as conservator of the person and the estate of Jean. The court
denied Jeannie’s petition to be appointed conservator with prejudice. The court ordered
that the temporary letters issued to Cotterman remain in effect until the court issued a
final statement of decision, after which, depending on the final statement of decision,
permanent letters would be issued. Jeannie filed objections to the tentative statement of
decision.
It appears a trial was held on White’s petition for final account on June 13, June
15, and July 6, 2011. White was represented by attorney Kathryn J. Black. No reporter’s
transcripts or minute orders for any of these dates have been included in the record on
appeal.
Jeannie filed a request for accommodations on June 15, 2011. She requested an
accommodator present in court, a transcript provided on the day of the hearing or the
option to record hearings, and breaks as necessary. She attached her doctor’s declaration
that Jeannie was suffering from a stress disorder as a result of the litigation. The request
was denied in whole or in part because it failed to satisfy the requirements of rule 1.100
of the California Rules of Court.2 The written denial was signed by a person other than
the trial court judge. On appeal, Jeannie refers to a discussion in the trial court on June
13, 2011, about her request for accommodations, but as noted above, no reporter’s
transcript has been included in the appellate record for that date.
On November 1, 2011, the trial court ruled on the competing petitions for
appointment of a conservator, including Jeannie’s objections to the June 15, 2011,
tentative statement of decision. The court adopted the findings of the tentative statement
of decision with minor modifications. On the same day, the trial court issued a lengthy
2 All further citations to rules are to the California Rules of Court.
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minute order approving White’s final account and awarding conservator fees and costs of
$27,131.05, attorney fees of $41,720.35, and costs of $547.09.
On November 7, 2011, Jeannie filed an ex parte motion to remove Cotterman as
temporary conservator. The case summary reflects an opposition to the ex parte motion
was filed the same day which has not been made part of the record on appeal. If there
was an initial hearing on the ex parte motion, no reporter’s transcript has been included in
the record on appeal.
A hearing was held on November 18, 2011. The trial court stated, “I understand
that this matter came in ex parte and that Judge Beckloff set the matter for further hearing
for this afternoon. I have reviewed the emergency ex parte motion that was brought by
[Jeannie’s attorney] on November 7th. I’ve reviewed the opposition that was filed also
November 7th by Ms. Creutz [the probate volunteer panel attorney appointed to represent
the interests of the conservatee].” The trial court explained to Jeannie, “Mary Creutz is
raising the issue that when you bring a petition for instructions which is unsuccessful,
you can be deemed a vexatious litigant. I don’t know if you and [your attorney] have had
a chance to talk about that yet. Ms. Lodise [the attorney for Jeannie’s siblings], in her
opposition to your ex parte request, is asking to have you deemed a vexatious litigant . . .
within the meaning of Probate Code section 1970.” The trial court denied Jeannie’s ex
parte request and set the issue of whether Jeannie should be considered a vexatious
litigant for hearing on December 19, 2011, with an order to show cause for contempt that
had been previously scheduled.
On November 28, 2011, Jeannie’s attorney Tracey Hom filed a declaration in
opposition to the motion to declare Jeannie a vexatious litigant and in opposition to the
order to show cause regarding contempt. Hom stated the motions filed in the case were
necessary to bring issues concerning conservatee’s care before the court.
With the court’s permission, Jeannie filed additional objections to the statement of
decision regarding appointment of a conservator. A hearing was held on these objections
on December 2, 2011. No reporter’s transcript or minute order for December 2, 2011, is
part of the record on appeal. The court took matters raised at the hearing under
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submission. On December 12, 2011, the trial court issued a minute order supplementing
the November 1, 2011 order and ruling on Jeannie’s further objections to the statement of
decision.
Jeannie submitted a new request for accommodations on December 15, 2011,
seeking four accommodations: (1) to record all court proceedings using her own
recording device to assist with memory deficits; (2) frequent short breaks from the
proceedings; (3) extra time to think without pressure from adversaries or the court, and
possibly extended deadlines; and (4) protection from the false assertions and ridicule of
her adversaries.
The trial court filed a written response on December 19, 2011, denying the request
in part, because it failed to satisfy the requirements of rule 1.100, created an undue
burden on the court, and fundamentally altered the nature of the service, program, or
activity. The court agreed to provide an alternative accommodation for Jeannie, by
allowing her the opportunity to organize her thoughts before answering questions and
breaks as necessary.
Jeannie’s attorney Robert Canny was present at the hearing on December 19,
2011. He informed the court that Jeannie was not ready to move forward with the order
to show cause regarding contempt, because Robert Knecht, who was another attorney
representing Jeannie, was in trial and unable to attend the hearing. On Knecht’s behalf,
he requested a continuance of the contempt issues. Canny was prepared to move forward
on the vexatious litigant issues. The trial court asked whether Canny could represent
Jeannie on the contempt issues, since he was assisting Knecht in the matter and knew the
case better than Knecht. Canny insisted that Knecht was a skilled defense counsel for
criminal matters, as opposed to his own specialty in civil real estate litigation.
Canny noted that the court had ruled on Jeannie’s request for accommodations.
He argued that the court was required to grant the request under federal law or it was
subject to appeal by writ. Jeannie had told him she wanted a writ filed if the request for
accommodations was denied. He noted that Jeannie was not present to confirm her
directions, although he had expected her to appear. He argued that the court could not
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proceed on any matters if the request for accommodations was denied. The trial court
stated that the request for accommodations had procedural defects and offered to explain
the basis for the denial. Canny objected that the request for accommodations was
confidential. The other parties did not know the information in the request or the court’s
ruling on the request.
The trial court continued the contempt matter to January 24, 2012. The siblings’
attorney explained that in her opposition to the ex parte motion to have Cotterman
removed, she requested Jeannie be deemed a vexatious litigant. She believed Creutz had
filed an application to have Jeannie deemed a vexatious litigant. Canny argued that a
noticed motion was required and Code of Civil Procedure section 391.7 did not apply,
because each of Jeannie’s motions had been made through counsel. The siblings’
attorney argued that the Probate Code provided broader grounds for the court to make a
vexatious litigant determination, which could be on the court’s own motion.
The trial court considered when the conservatorship was established for purposes
of the Probate Code and whether the Probate Code section applied prior to the court’s
minute order issued on December 2, 2011, resolving the competing petitions for
conservatorship. The court found Jeannie had notice based on the discussion at the prior
hearing and continuance of the vexatious litigant issue.
The siblings’ attorney argued that the temporary conservatorship satisfied the
statute, but at the very latest, the conservatorship was established by the trial court’s order
of November 1, 2011, and Jeannie filed her ex parte motion to have the conservator
removed following that order. Canny responded that the minute order establishing the
conservatorship was made on December 2, 2011, which was a month after Jeannie’s ex
parte motion for removal. He also argued that the Probate Code provisions incorporated
the provisions of Code of Civil Procedure section 391.
The court granted the request and deemed Jeannie a vexatious litigant, considering
the totality of the circumstances and the express goal of the Legislature in enacting
Probate Code section 1970. The court ordered that Jeannie needed to obtain permission
to file further actions, whether in pro per or represented by counsel, and would need to
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establish that the action was not for the purposes of harassing or upsetting the conservator
or the conservatorship.
No minute order for December 19, 2011, is included in the record on appeal. In
appellant’s brief, she claims statements were made at the December 19, 2011 hearing
about her request for accommodations which are not reflected in the reporter’s transcript
of the hearing. The court entered a prefiling order dated December 19, 2011, applicable
to Jeannie as a vexatious litigant. The order was entered pursuant to a motion by Creutz
and prohibits Jeannie from filing any new litigation in a California court in propria
persona without approval of the presiding judge of the court in which the action is to be
filed.
On December 21, 2011, the court entered an order approving the final account of
the temporary conservator White. The court approved payment of attorney fees and costs
to Kathryn Black totaling $42,267.44.
On January 19, 2012, the court issued letters of conservatorship to Cotterman over
the person and the estate of Jean. Jeannie filed a timely notice of appeal on February 17,
2012, which stated that the appeal was being taken from the December 19, 2011 prefiling
order,3 the December 19, 2011 order denying part of her request for accommodations, the
December 21, 2011 order approving White’s final account, and the January 19, 2012
order issuing letters of conservatorship to Cotterman.
3
A prefiling order against a vexatious litigant under Code of Civil Procedure
section 391.7 is directly appealable under Code of Civil Procedure section 904.1,
subdivision (a)(6), as an order granting an injunction. (Luckett v. Panos (2008) 161
Cal.App.4th 77, 89-90.)
8
DISCUSSION
Standard of Review
“On appeal, we must presume the trial court’s judgment is correct. [Citation.] In
service of that rule, we adopt all intendments and inferences to affirm the judgment or
order unless the record expressly contradicts them. [Citation.]” (Nielsen v.
Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen).)
“It is the burden of the party challenging a judgment on appeal to provide an
adequate record to assess error. [Citation.] Thus, an appellant must not only present an
analysis of the facts and legal authority on each point made, but must also support
arguments with appropriate citations to the material facts in the record. If he fails to do
so, the argument is forfeited. [Citation.]” (Nielsen, supra, 178 Cal.App.4th at p. 324.)
“The California Rules of Court provide an appellant with a choice of several types
of records upon which to take an appeal. The choices include a reporter's transcript, a
clerk's transcript, an agreed statement and a settled statement. (Cal. Rules of Court, rules
8.831, 8.832, 8.834, 8.836, 8.837.)” (Nielsen, supra, 178 Cal.App.4th at p. 324.)
“‘A court exercises its discretion in determining whether a person is a vexatious
litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial
evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is
correct and imply findings necessary to support the judgment.’ (Bravo v. Ismaj (2002) 99
Cal.App.4th 211, 219.) Questions of statutory interpretation, however, we review de
novo. (Ibid.)” (Holcomb v. U.S. Bank Nat. Assn (2005) 129 Cal.App.4th 1494, 1498-
1499.)
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Vexatious Litigant Determination
Jeannie contends that the prefiling order must be reversed because she was
represented by counsel as to each motion at issue. The record on appeal is inadequate to
allow meaningful review of this issue. The record does not include the motion filed by
Creutz seeking the vexatious litigant determination, which was the basis for the written
order, or the November 2011 opposition to the ex parte motion filed by Christine and
Wesley, which requested a vexatious litigant determination as well. Therefore, this court
cannot examine the grounds on which the order was sought and granted.
Even if the record were adequate, we would uphold the order. In enacting the
vexatious litigation provisions of Probate Code section 1970, the Legislature expressly
found “unwarranted petitions, applications, or motions other than discovery motions after
a conservatorship has been established create an environment that can be harmful to the
conservatee and are inconsistent with the goal of protecting the conservatee.” (Prob.
Code, § 1970, subd. (a).)
Probate Code section 1970, subdivision (b), provides a basis for finding a person
to be a vexatious litigant separate from other statutory definitions: “Notwithstanding
Section 391 of the Code of Civil Procedure, if a person other than the conservatee files a
petition for termination of the conservatorship, or instruction to the conservator, that is
unmeritorious or intended to harass or annoy the conservator, and the person has
previously filed pleadings in the conservatorship proceedings that were unmeritorious or
intended to harass or annoy the conservator, the petition shall be grounds for the court to
determine that the person is a vexatious litigant for the purposes of Title 3A
(commencing with Section 391) of Part 2 of the Code of Civil Procedure. For these
purposes, the term ‘new litigation’ shall include petitions for visitation, termination of the
conservatorship, or instruction to the conservator.” (Prob. Code, § 1970, subd. (b).)
The basis for a vexatious litigant determination set forth in Probate Code section
1970 is not limited to litigation filed in propria persona, as it is under Code of Civil
Procedure section 391. In comparison, Code of Civil Procedure section 391, subdivision
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(b), defines a vexatious litigant as “a person who does any of the following: [¶] (1) In the
immediately preceding seven-year period has commenced, prosecuted, or maintained in
propria persona at least five litigations other than in a small claims court that have been
(i) finally determined adversely to the person or (ii) unjustifiably permitted to remain
pending at least two years without having been brought to trial or hearing. [¶] (2) After a
litigation has been finally determined against the person, repeatedly relitigates or attempts
to relitigate, in propria persona, either (i) the validity of the determination against the
same defendant or defendants as to whom the litigation was finally determined or (ii) the
cause of action, claim, controversy, or any of the issues of fact or law, determined or
concluded by the final determination against the same defendant or defendants as to
whom the litigation was finally determined. [¶] (3) In any litigation while acting in
propria persona, repeatedly files unmeritorious motions, pleadings, or other papers,
conducts unnecessary discovery, or engages in other tactics that are frivolous or solely
intended to cause unnecessary delay. [¶] (4) Has previously been declared to be a
vexatious litigant by any state or federal court of record in any action or proceeding based
upon the same or substantially similar facts, transaction, or occurrence.”
Probate Code section 1970 provides a separate basis for finding a person to be a
vexatious litigant, notwithstanding the definition provided in Code of Civil Procedure
section 391. Probate Code section 1970 does not limit the reach of the statute to persons
who file pleadings in propria persona. The Legislature was aware of the provisions of the
Code of Civil Procedure and chose not to provide a similar limitation in the Probate Code
provisions.
We conclude the trial court correctly interpreted Probate Code section 1970 to
apply to pleadings filed by a person who was represented by counsel. We note that the
prefiling order is limited to new litigation Jeannie files in propria persona. (Code of Civ.
Proc., § 391.7.)
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Final Account
Jeannie contends that the order approving White’s final account should be
reversed. However, Jeannie has not included any of the reporter’s transcripts from the
trial on these issues. The record is inadequate to review issues concerning the trial
court’s findings on the final account.
In addition, Jeannie has not supported her contentions through meaningful
argument and citation to the record. She states that prior to the trial on the accounting
issues, she objected to items in White’s account and the amount of compensation
claimed. She also notes that she filed objections to the statement of decision amounting
to $7,000. However, she does not explain her objections or cite any evidence in the
record to support her contentions. Jeannie has failed to meet her burden to show that the
trial court committed prejudicial error.
Appointment of Linda Cotterman
Jeannie contends letters of conservatorship should not have been issued to
Cotterman, because her actions are hostile and punitive toward Jeannie, she has placed
caregiver comfort over the conservatee’s interests, and she is not properly managing the
conservatee’s repeated health issues. The record does not contain a reporter’s transcript
of the December 2, 2011 hearing on Jeannie’s objections to the trial court’s findings.
Therefore, the record is incomplete and inadequate for review.
Even if we found the record adequate, there is ample evidence to support the trial
court’s findings that Cotterman is a suitable and appropriate conservator for conservatee.
She took conservatee to multiple doctor and dentist appointments. She has not refused
any treatment for conservatee. She arranged for consistent caregivers and maintenance of
conservatee’s assets to the extent that funds allowed. She has navigated her duties under
pressure from competing interests of the conservatee’s relations. The trial court’s
findings are supported by substantial evidence.
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Request for Accommodations
Jeannie filed a request for accommodations on December 15, 2011, which the trial
court granted in part and denied in part on December 19, 2011. The record appears to be
inadequate to review the trial court’s ruling, because appellant refers to oral statements in
her opening brief made by the trial court in ruling on the request for accommodations
which are not reflected in the reporter’s transcript provided on appeal.
Even were we to find the record adequate, we would conclude appellant has failed
to demonstrate error. Rule 1.100 (b) provides persons with disabilities full and equal
access to the judicial system. A party may present a written or oral request for
accommodation, which must be forwarded to the court’s ADA (Americans with
Disability Act of 1990; 42 U.S.C. § 12101, et seq.) coordinator within the specified time
frame. (Rule 1.100 (c)(1).) The applicant must describe the accommodation requested
and state the impairment necessitating the accommodation. (Id. at (c)(2).) The request
must be made as far in advance as possible, but no fewer than five court days in advance
of the need for accommodation, although the court may exercise its discretion to waive
this requirement. (Id. at (c)(3).) The court must inform the applicant in writing whether
the request is granted or denied, in whole or in part, or an alternative accommodation is
granted. (Id. at (e)(2)(A).) A request may be denied for only three reasons: the applicant
failed to satisfy the requirements, the requested accommodation would “create an undue
financial or administrative burden,” or the requested accommodation would
“fundamentally alter the nature of the service, program, or activity.” (Id. at (f).)
If the request for accommodation is denied by nonjudicial court personnel, the
applicant may submit a written request for review of the determination to the presiding
judge or designated judicial officer within 10 days of the date the response was delivered
or sent. (Rule 1.100(g)(1).) A determination made by a judicial officer is reviewable by
filing a petition for a writ of mandate in the appropriate court within 10 days after the
response was delivered or sent. (Id. at (g)(2).) Jeannie did not file a petition for review
13
by writ of mandate, but contends that she can raise an error in denying her request for
accommodation in connection with the appeal of subsequent orders. (In re Marriage of
James M.C. & Christine J.C. (2008) 158 Cal.App.4th 1261 [merits of accommodation
request considered in conjunction with appeal from judgment].)
If a request for accommodations is erroneously denied, appellant may not need to
demonstrate prejudice as a result. “From as far back as 1872, a fundamental precept in
California is that in civil cases only prejudicial error is reversible. (Code Civ. Proc., §
475. See Cal. Const., art. VI, § 13.) Nevertheless, some errors in civil cases remain
reversible per se, primarily when the error calls into question the very fairness of the trial
or hearing itself. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 456, pp. 511–
513.) The sole published decision to interpret rule 1.100 suggests that wrongful denial of
an accommodation is structural error that does not require prejudice for reversal.”
(Biscaro v. Stern (2010) 181 Cal.App.4th 702, 709, referring to In re Marriage of James
M.C. & Christine J.C., supra, 158 Cal.App.4th 1261.) “The appellate court’s dispensing
with analysis of prejudice indicates wrongful denial of an accommodation is structural
error infecting a legal proceeding’s reliability, which stands to reason because an
accommodation’s purpose is to help a party meaningfully participate in a way that
enhances our confidence in a proceeding’s outcome. Unlike most legal error, structural
error calls for reversal per se because the error prevents a reviewing court from
ascertaining what might have happened absent the error. [Citation.]” (Biscaro v. Stern,
supra, at p. 710.)
In this case, the trial court denied Jeannie’s request for accommodations because it
did not meet the requirements. Jeannie filed the request on Thursday, December 15,
2011, which was less than five court days before the hearing scheduled for Monday,
December 19, 2011. Therefore, the request for accommodations was properly denied
under the rule.
We note that unlike In re Marriage of James M.C. & Christine J.C., supra, 158
Cal.App.4th 1261, the denial of accommodations in this case is unrelated to the
appealable orders. Jeannie’s ability to meaningfully participate in the proceedings was
14
not affected by the partial denial of her request for accommodations. She did not appear
at the December 19, 2011 hearing, so the denial of part of her request did not have any
impact on her ability to participate at that hearing. No further hearings were held on the
issues before the trial court entered its orders approving White’s final account and issuing
letters of conservatorship to Cotterman. Therefore, the denial of accommodations had no
impact on Jeannie’s ability to participate with respect to those matters.
In her brief on appeal, Jeannie raises issues concerning the denial of her June 15,
2011 request for accommodations. She did not list the June 15, 2011 order in her notice
of appeal. The June 15, 2011 determination was signed by someone other than the trial
court. If nonjudicial court personnel denied the request for accommodation, rule 1.100
(g), provided for a right to appeal the determination to the presiding judge or designated
judicial officer. We also note Jeannie has failed to demonstrate that her June 15, 2011
request for accommodations met the requirements of rule 1.100.
DISPOSITION
The prefiling order, the order approving the final account of Carol White, and the
order issuing letters of conservatorship to Linda Cotterman are affirmed. Linda
Cotterman is awarded her costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P.J. MOSK, J.
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