Conservatorship of Mayo CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

the subject real property. Among other arguments, Ronald contends the court abused its

discretion by making the subject orders on an ex parte basis and without being

completely informed of the relevant facts as required under In re Conservatorship of Hart

(1991) 228 Cal.App.3d 1244 (Hart). We agree, and thus, reverse the orders and remand

the matter back to the superior court for further proceedings consistent with this opinion.

PROCEDURAL AND FACTUAL BACKGROUND

Ronald and Leslie have been married for over 40 years. Ronald, age 85, resides at

8131 Paseo del Ocaso, La Jolla, California 92037 (House). Leslie, age 78, suffers from

advanced dementia. On December 30, 2008, Leslie's two adult children from her prior

marriage, Lee Roy (Roy) and Murray, were appointed coconservators of the person and

estate of Leslie.

From 1986 until June 2011, Ronald and Leslie lived together in the House.

However, on June 29, 2011, Roy and Murray removed Leslie from the House and placed

her in a memory care facility. Leslie's care is expensive, and she does not have sufficient

funds to pay for it. Murray claims that, on average, after considering tax obligations and

incidental expenses, Leslie's monthly deficit is $1,500.

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 Ronald and Leslie had purchased the House as community property and later

placed it in the Trust as community property. In addition to the House, the Trust holds

the House's furnishings as assets. The Trust created a life estate to the surviving spouse

in the House. The Trust permits personal revocation or revocation by a conservator with

court approval.

On April 11, 2013, Murray, as coconservator, filed a petition to: (1) revoke the

Trust; and (2) partition and sell Leslie's real property (including the House). Murray also

alleged a breach of the Trust. In the petition, Murray stated that "[t]he purpose of this

petition is to allow Leslie to access her own assets to pay for her care above what the

court orders Ronald Mayo to pay . . . ."

Murray also filed an ex parte application seeking to revoke the Trust and for leave

to petition for partition of the House. In the ex parte coversheet, Murray defines the

reason he is seeking an immediate ex parte order is that the "conservatee has insufficient

funds to maintain her expenses." In his application, Murray reiterates that Leslie has

"insufficient cash to meet her monthly living and healthcare expenses, and her husband,

Ronald Mayo, refuses to provide the $1,500 per month in supplemental support that

Leslie needs." Thus, Murray requested that the court order Leslie's interest in the Trust

revoked and allow him to petition to partition the House.

In support of the ex parte application, Murray submitted a declaration from his

attorney detailing the notice she provided to Ronald. He also included portions of the

second amendment to the Trust. Murray did not include any evidence as to Leslie's

monthly income, monthly expenses, savings, or other funds at her disposal.

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 Perhaps Murray did not deem such evidence necessary because the hearing on the

ex parte application was held on the same day as the trial on Murray's petition for support

of Leslie. However, the support petition and any evidence filed in support of it are not in

the record before us. In addition, at the request of the parties, the court continued the trial

on the support petition from April 22 to October 25, 2013. As part of the court's order

continuing the trial, it ordered Ronald to pay $1,300 per month toward Leslie's care until

the date of the continued trial.

In addressing the ex parte application, the court noted that Ronald's agreement to

pay $1,300 a month toward Leslie's care "make[s] up [Leslie's monthly] deficit so that

her care is left." Murray's attorney agreed. The court then made clear what the parties

were "fighting over" is a "very large attorney fees order." Murray's counsel stated that if

the parties could resolve the support issue at the ex parte hearing then Murray's attorneys

would agree to wait to be paid. The parties, however, were not able to resolve the

support issue because Ronald stated the amount of Leslie's monthly deficit had never

been proved.

After additional discussion, the court presented a choice to Ronald. He could

agree to pay $1,300 in support of Leslie for the rest of her life, subject to modification in

the future if the expenses increased or decreased. If he did not agree to do so, the court

would issue the order revoking Leslie's interest in the Trust and allow Murray to proceed

with his petition to partition the House. Ronald repeated that he disputed the amount of

Leslie's monthly deficit so he would not agree to a permanent support plan. As such, the

court granted the application and ordered the requested relief.

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 Ronald timely appealed.

DISCUSSION

Ronald raises three issues on appeal. First, he contends the court erred in granting

Murray's requested relief on an ex parte basis and without being fully informed of all

relevant circumstances. Second, Ronald argues the court erred in transferring the House

from Ronald and Leslie, as husband and wife, as trustees, to Ronald, as trustee and

Leslie, as an individual, as tenants in common. Third, Ronald maintains the court erred

in granting Murray's application for an order under Probate Code1 section 2463

permitting him to petition to partition the House. Because we agree with Ronald on the

first issue, we do not reach the remaining two issues.

As a threshold matter, Murray contends Ronald does not have standing to maintain

this appeal because, after the court entered the subject orders, Ronald filed a petition for

dissolution of his marriage with Leslie.2 However, Murray provides no authority to

support this proposition. He does cite to two Family Code sections (§ 771, subd. (a) and

§ 2040, subd. (a)), but neither section states that an individual loses his appellate rights

after he files for dissolution of his marriage. (See Fam. Code, § 771, subd. (a) [property

acquired by either spouse during marriage, but after separation, is ordinarily the acquiring

spouse's separate property]; Fam. Code, § 2040, subd. (a) [dissolution summons must

contain a temporary restraining order restraining both parties from removing minor

1 Statutory references are to the Probate Code unless otherwise specified.

2 We grant Murray's motion for judicial notice of Ronald's petition for dissolution of
marriage. (See Evid. Code, § 452, subd. (d).)
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children from California, transferring property, changing life insurance coverage, and

creating or modifying a nonprobate transfer in a way that affects disposition of the

property].)

Murray's standing argument appears to be created out of whole cloth without any

authority whatsoever. He simply dictates: "Ronald's filing for divorce should divest his

standing as a spouse to assert any objection to the revocation of Leslie's interest in the

Trust and her effort to force a sale of the House." He fails to cogently explain why this is

so. To the extent he is arguing that Ronald only has standing because he is Leslie's

spouse, he ignores the fact that, even after filing of the petition to dissolve his marriage,

Ronald remains Leslie's spouse. (See Fam. Code, § 310 [a marriage can be dissolved

only by the death of one of the parties, a judgment of dissolution of marriage, or a

judgment of nullity of marriage].) As such, we determine Ronald has standing to pursue

the instant appeal.

Having concluded Ronald has standing to proceed with this appeal, we turn now to

his first argument that the court erred in granting Murray's requested relief on an ex parte

basis and without being fully informed of all relevant circumstances. Murray contends

the court was authorized to grant the subject orders under section 2580 et seq., the

substituted judgment statutes. Under section 2580 et seq., the Legislature has authorized

a trial court to substitute its judgment for that of a conservatee. (Hart, supra, 228

Cal.App.3d at pp. 1251-1252; In re Conservatorship of Kane (2006) 137 Cal.App.4th

400, 403 (Kane).) "The doctrine underlying the substituted-judgment statute was first

recognized in California in Estate of Christiansen (1967) 248 Cal.App.2d 398.

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Christiansen declared 'that the courts of this state, in probate proceedings for the

administration of the estates of insane or incompetent persons, have power and authority

to determine whether to authorize transfers of the property of the incompetent for the

purpose of avoiding unnecessary estate or inheritance taxes or expenses of

administration, and to authorize such action where it appears from all the circumstances

that the ward, if sane, as a reasonably prudent man, would so plan his estate, there being

no substantial evidence of a contrary intent.' [Citation.] Significantly, Christiansen did

not require that a court find the ward would have acted as proposed; instead it adopted an

essentially objective prudent-person standard. Thus Christiansen contemplated

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.
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 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.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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