Filed 2/22/21 Conservatorship of Farrant CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B306501
and Estate of NORMA (Super. Ct. No. 56-2016-00483787-PR-
FARRANT. CP-OXN)
(Ventura County)
ANGELIQUE FRIEND, as
Conservator,
Petitioner and Respondent,
v.
DUANE FARRANT,
Objector and Appellant.
This is the second appeal in this matter. It concerns a
residence that Duane Farrant claims is owned solely by him. In
the first appeal Farrant, the son of conservatee Norma Farrant,
appealed an order granting conservator Angelique Friend’s
petition to sell the residence. Conservator claimed that the
residence had been owned by appellant and conservatee as joint
tenants, so each had a one-half interest in the residence.
Conservator needed to sell the residence to raise funds to pay for
services provided by an assisted living facility where conservatee
was living. In a nonpublished opinion, we dismissed the appeal
as moot because the residence had been sold and we could not
undo the sale. (Conservatorship of the Person and Estate of
Norma Farrant (Aug. 22, 2019) B289203.)
In the present appeal Duane Farrant appeals an order (1)
confirming that a 2009 recorded deed quitclaiming the residence
to him is void, (2) decreeing that the residence was owned by
appellant and conservatee as joint tenants until the joint tenancy
was severed in 2017, and (3) dividing the proceeds from the sale
of the residence equally between appellant and conservator.1
Appellant contends that the probate court erroneously (1)
based its decision on conservator’s verified petition, (2) denied his
request for an evidentiary hearing, and (3) improperly
communicated ex parte with conservator’s counsel. We affirm.
Factual and Procedural Background
After the remittitur was issued in the first appeal,
conservator filed a verified petition requesting that the probate
court divide the sale proceeds equally between her and appellant.
Conservator claimed that the 2009 deed, in which conservatee
had quitclaimed her entire interest in the residence to appellant,
was “void as a matter of law.”
Exhibits to the petition show the property’s title history.
Before conservatee signed the 2009 quitclaim deed, the residence
1A third appeal is pending before us in B307338. In this
appeal the appellant is also Duane Farrant. On October 7, 2020,
we denied appellant’s motion to consolidate the second and third
appeals.
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was owned by her as trustee of the Norma Farrant Family Trust.
Three weeks after conservatee had quitclaimed the residence to
appellant, she signed a grant deed conveying the residence to
herself and appellant as joint tenants. They both signed a deed
of trust on the residence to secure a $120,000 loan. The deed of
trust states that the borrower is “mother and son, as joint
tenants.” Thus, even appellant acted on the theory that the 2009
deed was void. He should be, and is, estopped from now trying to
resurrect the 2009 deed by a new evidentiary hearing.
The petition’s exhibits include a purported “contract”
between conservatee and appellant that was signed
approximately three months before the 2009 quitclaim deed.
Conservatee agreed to quitclaim the residence to appellant in
consideration of his “helping in [conservatee’s] medical attention,
food, clothing and normal care and needs. Not limited to, but to
include all doctors[’] appointments and things of which she will
need for her life for as long as she’s able to take care of herself.”
The contract stated: “[T]his is not to be the sole property of
[appellant], as after the passing of [conservatee] the proceeds of
said property and assets of [conservatee] shall be dispersed
evenly between [appellant and his brother,] Joshua Farrant . . . .”
Appellant did not file a response to conservator’s petition.
The day before the hearing on the petition, the probate court
“published” its tentative ruling in which it requested that
conservator provide supplemental briefing. Conservator filed her
brief on the date of the hearing. In the brief conservator claimed
that appellant had unduly influenced conservatee to sign the
2009 quitclaim deed.
No evidence was presented at the hearing on the petition.
Appellant’s counsel argued that the 2009 quitclaim deed was
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valid because when conservatee signed it, she “was very
sophisticated, knowledgeable, and knew what she was doing.”
“It’s not like as though she was not sophisticated or she didn’t
have the sound mind when she did this.” In view of the valid
quitclaim deed, conservatee “had zero interest in the property”
when she subsequently deeded it to herself and appellant as joint
tenants. Thus, “her subsequent transfer . . . has no legal effect.”
Appellant’s counsel claimed that his client should receive all of
the proceeds from the sale of the residence because under the
quitclaim deed he was the sole owner of the property at the time
of the sale. Counsel requested that the court permit him to file a
brief “on this issue.” The probate court did not rule on his
request.
Conservator’s counsel argued that conservatee’s conduct
“illustrate[s] . . . a pattern of someone who is susceptible to the
undue influence of the person before her.” Conservatee’s signing
of conflicting deeds within a period of three weeks “shows a
person who doesn’t know what they’re doing.” Counsel
continued, “[N]ot only did everyone pretty much not rely on this
rogue deed [the 2009 quitclaim deed], but . . . everyone relied on
the subsequent deed [conveying title to conservatee and appellant
as joint tenants] . . . .”
Appellant’s counsel responded: “The fact that there were
changes when [conservatee] changed her mind, as [conservator’s]
counsel argued, that is not evidence before this Court. . . . [¶] . . .
[T]he Court should not be swayed by the emotional appeals of
counsel . . . . There’s no evidence to back it.”
Conservator’s counsel stated, “If I’m listening to
[appellant’s] counsel and I’m hearing him correct, he’s asking for
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an evidentiary hearing.” Appellant’s counsel replied, “Exactly,
your Honor. Thank you.”
The court responded, “We’re not going to revisit
anything. . . . We don’t have any evidence that anyone has acted
other than by ignoring this rogue [quitclaim] deed . . . since 2011
to the present. . . . [¶] I’m not going to give you time for an
evidentiary hearing, because this has had opportunities to be
addressed. It has not been addressed.[2] And, in fact, both
Norma Farrant, the conservatee, and [appellant], whose interests
are affected here, have acted as if this was a rogue deed for over a
decade.” The court said its “ruling is based on not only the filings
in this proceeding, but the supplemental brief filed today; the
entirety of the proceedings as I understand them contained in the
court file, which is voluminous; and the argument of counsel
today.”
Alleged Violation of Statute Prohibiting Use of Affidavits and
Verified Petitions in Contested Probate Proceedings
“It has long been the rule that in probate matters ‘affidavits
may not be used in evidence unless permitted by statute. . . .’”
(Estate of Bennett (2008) 163 Cal.App.4th 1303, 1308-1309
(Bennett).) “[T]he Probate Code limits the use of affidavits to
2 Conservatee’s counsel, who was present at the hearing,
expressed the frustration caused by the long and drawn-out
litigation: “The Court’s files have to be as large as the boxes in
our office. . . . These are pleadings that have been going [on] for
years. . . . [¶] This is not the first time this is before the Court.
This is not the first time this has been before the federal court,
civil court, and the Court of Appeals . . . . [¶] This has been
trailing for years and years. This has been addressed in at least
10 to 20 different hearings just on this topic alone . . . . [W]e do
intend to end this matter so that our client’s funds are not
consistently drained . . . .”
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‘uncontested proceeding[s].’” (Id. at p. 1309.) “Consequently,
‘when challenged in a lower court, affidavits and verified
petitions may not be considered as evidence at a contested
probate hearing. . . .’” (Ibid.) The relevant statute is Probate
Code section 1022, which provides, “An affidavit or verified
petition shall be received as evidence when offered in an
uncontested proceeding under this code.” (Italics added.)
The probate proceeding here was contested. Appellant
contends that, in ruling that the 2009 quitclaim deed was void,
the probate court acted “in direct violation of . . . Probate Code
section 1022” by “basing its decision on affidavits and declaration
against appellant’s objection.” (Bold and capitalization omitted.)
We disagree. Appellant’s counsel objected, on the ground of lack
of supporting evidence, to the oral argument of conservator’s
counsel that conservatee’s conduct “illustrate[s] . . . a pattern of
someone who is susceptible to . . . undue influence” and “who
doesn’t know what they’re doing.” Appellant’s counsel did not
object to the court’s consideration of conservator’s verified
petition and attached exhibits. Appellant’s counsel referred to
the exhibits during his oral argument. Thus, the probate court
properly considered the verified petition and attached exhibits.
(See Estate pf Fraysher (1956) 47 Cal.2d 131, 135 [“evidence
which is admitted in the trial court without objection, although
incompetent, should be considered in support of that court's
action [citations], and objection may not be first raised at the
appellate level”].)
Right to Evidentiary Hearing in
Contested Probate Proceeding
Appellant claims that, pursuant to Estate of Lensch (2009)
177 Cal.App.4th 667 (Lensch), and Bennett, supra, 163
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Cal.App.4th 1303, the probate “court committed reversible error
denying Appellant’s request for evidentiary hearing.” In Lensch
petitioners filed a verified petition to determine whether a
deceased beneficiary under a will had survived the testator.
Petitioners would take under the will only if the beneficiary had
not survived the testator. The petition was contested. At a
hearing the probate court issued a tentative ruling that the
beneficiary had survived the testator. It relied upon the
testator’s and beneficiary’s death certificates. “Petitioners
immediately requested an evidentiary hearing.” (Lensch, supra,
at p. 672.) Petitioners’ “[c]ounsel pointed to ‘sworn testimony of
[his] client who spoke to the coroner who declared that the time
of death of [the beneficiary] could not be determined.’” (Ibid.)
The probate court denied the request for an evidentiary hearing.
It issued a final ruling that “‘[the beneficiary] survived [the
testator], and that no further evidentiary hearing is required.’”
(Id. at p. 673.)
The appellate court reversed. It concluded that, because
the petition was contested, “the probate court should have
granted the request for an evidentiary hearing.” (Lensch, supra,
177 Cal.App.4th at p. 677.) The appellate court explained, “The
Probate Code anticipates that a party may submit a matter on a
verified petition alone. However, once a petition is contested, as
this one was, the court erred in refusing to permit [petitioners] to
proceed to an evidentiary hearing on the question of whether [the
beneficiary] survived [the testator].” (Id. at p. 678.) The
appellate court reversed the lower court’s order and remanded
the matter for an evidentiary hearing. (Id. at p. 682.)
Bennett, supra, 163 Cal.App.4th 1303, is consistent with
Lensch. In Bennett the petitioners filed a motion to set aside and
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rescind a settlement agreement and assignment of their interests
in the decedent’s estate. Petitioners claimed that the opposing
party (Smith) “[had] obtained the settlement and assignment
without giving adequate consideration and through fraud or
duress, and that they executed these documents under a mistake
of fact.” (Id. at p. 1307.) Smith argued that the probate court
must conduct an evidentiary hearing because petitioners’ motion
involved disputed material factual issues. Smith supported his
argument with “four declarations and numerous exhibits, which
made [several] factual assertions.” (Ibid.) The court granted
petitioners’ motion without conducting an evidentiary hearing.
The appellate court concluded, “[T]he probate court committed
reversible error in denying Smith’s request for an evidentiary
hearing.” (Id. at p. 1310.)
Standard of Review
The parties agree that the standard of review is abuse of
discretion. (See Lensch, supra, 177 Cal.App.4th at p. 676 [“In
Estate of Bennett[, supra,] 163 Cal.App.4th 1303, . . . the court
held it was an abuse of discretion to deny a request for an
evidentiary hearing of a contested motion”].)
“‘Discretion is abused whenever, in its exercise, the court exceeds
the bounds of reason, all of the circumstances before it being
considered. The burden is on the party complaining to establish
an abuse of discretion . . . .’” (Denham v. Superior Court (1970) 2
Cal.3d 557, 566.)
The Probate Court Did Not Abuse Its Discretion
Appellant has failed to carry his burden of showing that the
probate court abused its discretion in denying his request for an
evidentiary hearing. Unlike the appellants in Lensch and
Bennett, appellant here requested an evidentiary hearing without
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specifying the factual issues he intended to litigate at the hearing
and without explaining why a hearing was necessary.
Appellant’s counsel merely confirmed the understanding of
conservator’s counsel that appellant was “asking for an
evidentiary hearing.” In his reply brief appellant contends that
the probate court erred in failing “to grant the requested
evidentiary hearing on the issue of the mental competency of the
Conservatee Farrant.” But in the probate court appellant did not
say that the purpose of the evidentiary hearing would be to
assess conservatee’s competency.
Furthermore, appellant did not identify the witnesses who
would testify at the evidentiary hearing, nor did he make an offer
of proof as to the substance of the evidence he would present at
the hearing. In his opening brief appellant asserts, “Had the
court granted [his] request for evidentiary hearing, [he] was
going to call [conservatee’s] personal physician and personal
attorney to testify that [she] had the mental capacity on [the date
she signed the 2009 quitclaim deed] to have knowingly, without
undue influence executed the said quitclaim deed.” Appellant did
not inform the probate court that he intended to call these
witnesses.
Appellant complains, “The court never request[ed] an offer
of proof from the Appellant as a condition for granting or denying
the request for evidentiary hearing.” But it was not incumbent
upon the probate court to request an offer of proof; it was
incumbent upon appellant to make, or at least try to make, an
offer of proof. (See Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 282 [“the failure to make an adequate offer of
proof in the court below ordinarily precludes consideration on
appeal of an allegedly erroneous exclusion of evidence”].)
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Even if the Probate Court Had Abused Its Discretion,
Appellant Has Not Shown Prejudicial Error
“[A]n abuse of discretion results in reversible error only if it
is prejudicial.” (York v. City of Los Angeles (2019) 33 Cal.App.5th
1178, 1190; see Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
The burden is on the appellant to show prejudice. (Pool v. City of
Oakland (1986) 42 Cal.3d 1051, 1069.) An assessment of
prejudice is particularly difficult here because appellant did not
make an offer of proof in the probate court. (See People v.
Anderson (2001) 25 Cal.4th 543, 580 [rule requiring offer of proof
in the trial court (Evid. Code, § 354, subd. (a)) “is necessary
because, among other things, the reviewing court must know the
substance of the excluded evidence in order to assess prejudice”].)
In his briefs, appellant does not even discuss the issue of
prejudice. Accordingly, appellant has failed to carry his burden
of showing that the alleged abuse of discretion prejudiced him.
Probate Court’s Allegedly Ex Parte
Communication with Conservator’s Counsel
In its tentative ruling published the day before the hearing,
the probate court requested that conservator “provide a brief
distinguishing this matter” from two appellate court published
opinions. Appellant claims that this request was an improper ex
parte communication between the court and conservator. The
claim is without merit. Rule 8.00, subdivision A. of the Ventura
County Superior Court Rules provides: “Tentative rulings will be
available by 4:00 p.m. on the court day preceding the scheduled
date of the hearing. Tentative rulings may be obtained on the
court's Website at www.ventura.courts.ca.gov. Parties are
encouraged to use the court’s website to obtain tentative rulings.
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Parties without internet access may call the judicial secretary for
the courtroom of the hearing.”
Disposition
The order appealed from is affirmed. Conservator shall
recover her costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
Law Offices of Levi Reuben Uku and Levi Reuben Uku, for
Objector and Appellant.
Law Offices of David A. Esquibias, David Esquibias and
Sara J. McLemen, for Petitioner and Respondent.