Conservatorship of Mayo CA4/1 (2014) · DecisionDepot
Conservatorship of Mayo CA4/1
California Court of Appeal Aug 8, 2014 No. D064177Unpublished
Filed 8/8/14 Conservatorship of Mayo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Conservatorship of the Person and Estate of LESLIE A. MAYO. D064177
DONALD PRESTON MURRAY, AS CONSERVATOR, ETC., (Super. Ct. No. 37-2008-00152495-PR- Petitioner and Respondent, CP-CTL )
v.
RONALD A. MAYO,
Objector and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Julia C. Kelety,
Judge. Reversed and remanded.
Stephen M. Hogan for Objector and Appellant.
Henderson, Caverly, Pum & Charney, Kristen E. Caverly, Robert C. Mardian III
and Lisa B. Roper for Petitioner and Respondent.
Ronald A. Mayo (Ronald) appeals two ex parte orders entered by the superior
court in a probate matter. The first terminated conservatee Leslie A. Mayo's (Leslie)
interest in the Mayo Family Trust, settled on April 22, 1992, as amended and restated on
December 17, 2003 (Trust) and transferred certain real property formerly held in the
Trust by Ronald and Leslie, husband and wife, as trustees, to Ronald ,as trustee, and
Leslie, as an individual, as tenants in common. The second allowed Leslie's
coconservator, Donald Preston Murray (Murray), to proceed with a petition to partition
substitution of the court's judgment for that of the incompetent person." (Hart, supra, at
pp. 1251-1252; original italics.)
Section 2580, subdivision (a) provides that the court may grant a petition for an
order authorizing or requiring the conservator to take action for the purpose of
"(1) benefiting the conservatee or the estate; (2) minimizing current or prospective taxes;
or (3) providing gifts to persons or charities which would be likely beneficiaries of gifts
from the conservatee." (Kane, supra, 137 Cal.App.4th at p. 404.)
Section 2582 provides that the court may make an order for substituted judgment
only if it determines that the conservatee either is not opposed to the order or, if opposed,
lacks legal capacity for the proposed action. It also provides that the court must
determine either that the action will have no adverse effect upon the estate or that the
remaining estate will be adequate for the needs of the conservatee.
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Section 2583 provides that, in deciding a motion for substituted judgment, the
court must consider all the relevant circumstances, including 13 circumstances listed in
the section.
Section 2584 provides: "After hearing, the court, in its discretion, may approve,
modify and approve, or disapprove the proposed action and may authorize or direct the
conservator to transfer or dispose of assets or take other action as provided in the court's
order."
We review the superior court's order approving, disapproving, or approving with
modification a petition for substituted judgment for abuse of discretion. (Hart, supra,
228 Cal.App.3d at p. 1253.) Hart makes clear that to substitute its judgment for that of
the conservatee, the trial court must have "complete information as to all relevant
circumstances." (Id. at p. 1254.) The burden is on the conservator or other petitioner to
inform the court fully of those circumstances. "And in any case the superior court must
on its own motion take all steps necessary to satisfy itself, as the conservatee's
decisionmaking surrogate, that it has been fully and fairly informed." (Ibid.) Thus, the
trial court must "receive and consider relevant and otherwise admissible evidence." (Id.
at p. 1264.) A substituted judgment petition should be granted only if the trial court is
satisfied, "by a competent showing of all relevant circumstances, that in the last analysis
the proposed action is what a reasonably prudent person in the conservatee's position
would have done." (Ibid.)
Relying primarily on Hart, supra, 228 Cal.App.3d 1244, Ronald contends the
court was not fully and fairly informed. Specifically, he asserts the court had no basis to
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grant the relief on an ex parte basis because there was no urgency requiring the court to
act on an ex parte basis. Moreover, because the court granted the orders on an ex parte
basis, it did not have complete information as to all relevant circumstances. We agree.
Ex parte applications for relief are permitted only in limited circumstances.
(6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 58, p. 483.) One
such circumstance is "[w]here there is pressing necessity for immediate relief . . . ." (Id.
at p. 484.) Among other requirements (see California Rule of Court, rule 3.1200 et
seq.3), an ex parte applicant "must make an affirmative factual showing in a declaration
containing competent testimony based on personal knowledge of irreparable harm,
immediate danger, or any other statutory basis for granting relief ex parte."
(Rule 3.1202(c).) An ex parte application that fails to comply with these rules is properly
denied. (Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 977.)
Here, in his ex parte application, Murray described the "urgency for seeking an
immediate ex parte order" as Leslie having "insufficient funds to maintain her expenses."
However, during the ex parte hearing, Ronald agreed to pay $1,300 per month toward
Leslie's care until the support petition trial on October 25, 2013, and the court ordered
him to do so. After Ronald agreed to such payment, the court noted that Ronald was, "at
least for now, agreeing to make up [Leslie's] deficit [for her care]." And Murray's
attorney agreed. With the immediate urgency addressed, there ceased to be any
articulated need to proceed on an ex parte basis.
3 All references to rules are to the California Rules of Court. 9
Nevertheless, the court moved forward and addressed the issues raised in the ex
parte application. Ronald contends that in doing so, the court was not fully and fairly
informed. (See Hart, supra, 228 Cal.App.3d at p. 1254.) He points out that the court did
not have before it Leslie's will or separate intervivos trust. Ronald maintains that Murray
is a beneficiary under Leslie's will and he failed to disclose this fact as well as the
benefits he would receive in his role as a beneficiary by eliminating Ronald's life estate in
the House. We find no indication in the record that these estate documents were before
the court during the ex parte hearing or that Murray disclosed his status as a beneficiary
under Leslie's will. Section 2583, subdivisions (e) ["wishes of the conservatee"],
(f) ["any known estate plan"], and (g) ["the manner in which the estate would devolve
upon the conservatee's death"] indicate that the court's consideration of these issues is of
the moment in substituting its judgment for the conservatee's. As such, it does not appear
that the court had "complete information as to all relevant circumstances." (See Hart,
supra, 228 Cal.App.3d at p. 1254.)
In addition, Ronald notes the Trust, in its entirety, was not before the court, and
thus, the court did not and could not consider certain relevant portions of the Trust before
issuing the ex parte orders. For example, the Trust provides a life estate in the House for
the surviving spouse. It also states "[a]ll property delivered to both spouses shall
continue to be the Trustors' community property and shall be held and administered as
community property." Ronald argues these provisions prevent the court from changing
the manner in which the House was held. Although we do not weigh in on this issue, we
observe there is no indication in the record that the court considered these provisions of
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the Trust in making the ex parte orders. In determining to dissolve a trust as to a
conservatee, we deem it critical for the court to consider the entire trust document. Here,
there is no indication that the court did so. Therefore, the court was not "fully and fairly
informed." (See Hart, supra, 228 Cal.App.3d at p. 1254.)
Surprisingly, Murray, in his respondent's brief, does not respond to any of
Ronald's arguments about the lack of urgency supporting ex parte relief. Nor does
Murray explain how the court had all relevant information before it prior to making the
ex parte orders. He simply ignores these arguments. We also find it telling that Ronald
relied heavily on Hart, supra, 228 Cal.App.3d 1244, citing it throughout the opening
brief, but Murray does not even mention it in his respondent's brief. At best, we view
Murray's silence as a poor tactical decision. However, considering that Ronald's
arguments are well taken and Murray utterly failed to even acknowledge the issues, a
more reasonable interpretation is that Murray conceded the validity of Ronald's
contentions.
In any event, this case underscores the dangers of proceeding on an ex parte basis,
especially when the court will be substituting its judgment for the conservatee's under
section 2580 et seq. Here, the court did not have complete information of the relevant
circumstances. It was not fully and fairly informed by Murray. (See Hart, supra, 228
Cal.App.3d at p. 1254.) Instead of considering the entire Trust document, Leslie's will,
Leslie's separate trust, and Murray's status as a beneficiary under Leslie's estate
documents, the court reduced the ex parte hearing into a choice for Ronald. He could
agree to a permanent support plan of $1,300 a month or the court would remove Leslie's
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interests from the Trust and allow Murray to proceed with a petition to partition the
House. The court gave Ronald this Hobson's choice despite Ronald's arguments that he
needed a lawyer and his disagreement regarding the amount of support needed. This is
all the more surprising because of the court's comments regarding the uncertainty of
Leslie's monthly deficit:
"This is a fairly straightforward situation of just making sure that your wife has her care needs met. You disagree with the calculation of what that deficit is. It seems pretty straightforward to me, but I haven't heard the trial; so I don't know what the numbers are, but I know, at least in the short term, you have agreed to make the payments we have discussed of -- what was it? -- $1300 a month. But until we have the trial, I am not going to know what those numbers are."
Under these circumstances, it is clear the court abused its discretion in entering the
ex parte order terminating Leslie's interest in the Trust and transferring the House to
Ronald, as trustee, and Leslie, as an individual, as tenants in common. Also, because the
additional ex parte order allowing Murray to proceed with his petition to partition the
House was based on the order terminating Leslie's interest in the Trust, we determine that
order is improper as well. Accordingly, we reverse both ex parte orders and remand the
matter back to the superior court for further proceedings consistent with this opinion. We
express no opinion regarding whether the court can terminate Leslie's interest in the Trust
after a properly noticed hearing, especially in light of Ronald's petition to dissolve the
marriage.
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DISPOSITION
The orders are reversed and the matter is remanded for further proceedings
consistent with this opinion. Ronald is entitled to his costs of this appeal.