Kovtun v. Kovtun CA4/1

Filed 7/21/22 Kovtun v. Kovtun 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

KAROLYN KOVTUN, D079220

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2021-
00003979-PR-OP-CTL)
GORDON DAVID KOVTUN et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of San Diego County,
Julia C. Kelety, Judge. Reversed and remanded for further proceedings.
Van Dyke & Associates, Richard S. Van Dyke and Karla Baer for
Plaintiff and Appellant.
Henderson, Caverly, Pum & Trytten, Kristen E. Caverly, Lisa B. Roper
and Stephen D. Blea for Defendant and Respondent Gordon David Kovtun.

INTRODUCTION
In this contested probate proceeding, a sister filed a petition to revoke
her brother’s authority to serve as attorney-in-fact for their elderly father
under a durable power of attorney. Shortly after the brother filed a verified
objection to the petition, the probate court held an initial hearing. At the
hearing, brother’s counsel asked the court to dismiss the petition pursuant to

Probate Code1 section 4543. The court granted the motion and dismissed the
petition with prejudice, and in doing so resolved disputed issues without
considering competent evidence. About one month later, this court issued its
opinion in Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425‒427 (Dunlap),
holding a similar dismissal violated relevant procedural provisions and was
an abuse of discretion. Relying on Dunlap, we reverse the order of dismissal
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Factual Background Alleged in the Petition

On August 17, 2017, Jay Kovtun2 executed a “Durable Power of
Attorney for Financial Matters” (DPOA) that granted certain persons
nominated to serve as attorneys-in-fact the authority to exercise the powers

described in sections 4450 through 4463,3 including the power to transfer

1 Unspecified statutory references are to the Probate Code.

2 To distinguish the members of the Kovtun family, we refer to them by
their first names.

3 The referenced sections govern the powers of the nominated agent
generally (§ 4450), as well as powers relating to real property transactions
(§ 4451), tangible personal property transactions (§ 4452), stock and bond
transactions (§ 4453), commodity and option transactions (§ 4454), banking
transactions and financial institution transactions (§ 4455), business
operating transactions (§ 4456), insurance and annuity transactions (§ 4457),
estate transactions (§ 4458), claims and litigation (§ 4459), personal and
family maintenance (§ 4460), benefits from governmental programs, civil or
military service (§ 4461), retirement plan transactions (§ 4462), and tax
matters (§ 4463).

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personal property. Pursuant to the DPOA, Jay’s wife, Lael H. Kovtun, was
nominated to serve as Jay’s attorney-in-fact, and his adult son, Gordon
Kovtun, was nominated to succeed Lael in the event she became unable,
unwilling, or unavailable to serve. Before the DPOA’s execution, Lael had
already been determined to lack the mental capacity necessary to make
financial decisions for herself or others. Accordingly, as of August 17, 2017,
Gordon served as Jay’s attorney-in-fact under the DPOA.
Karolyn Kovtun, Jay’s daughter, first learned of the DPOA’s existence

on or about October 9, 2019, after she filed a petition4 seeking appointment
of temporary and permanent conservators for Jay’s person and estate.
Karolyn later voluntarily dismissed this petition without prejudice, in favor
of two other petitions (not at issue in this appeal) concerning the

administration and validity of Jay and Lael’s living trust,5 and Gordon’s

financial elder abuse of Lael.6
II.
Probate Court Proceedings
A. Karolyn’s Verified Petition
On January 25, 2021, Karolyn initiated this proceeding by filing a
verified petition for an order revoking the authority of the attorney-in-fact.
Karolyn averred that Jay was born in 1931, had recently suffered
significant health problems, including end-stage renal failure, pneumonia,
possible stroke, and dementia, and that Jay’s “mental deficits have had a
debilitating effect on his ability to plan, organize, and carry out actions in his

4 San Diego Superior Court Case No. 37-2019-00046977-PR-CP-CTL.

5 San Diego Superior Court Case No. 37-2020-00019715-PR-TR-CTL.

6 San Diego Superior Court Case No. 37-2020-00045966-CU-MC-CTL.

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own rational self-interest . . . significantly impair[ing] [his] ability to
understand and appreciate the consequences of his actions with regard to the
management of his financial resources.”
She further averred that Gordon suffered from a drug addiction, had
incurred substantial debt obligations, and in managing Jay’s financial
resources was favoring his own interests over the interests of Jay. She
alleged Gordon and his wife Annika Kovtun had committed the following acts
of financial elder abuse against Jay: Gordon, who was self-employed in the
construction business, had remodeled Jay’s home in exchange for the
allegedly excessive amount of $400,000; Gordon and/or Annika had
fraudulently dispossessed Jay of several hundreds of thousands of dollars and
had used the money to buy Annika a home in Norway; and Jay’s checking
account had been depleted following consecutive withdrawals of $150,000 and
$300,000, such that the San Diego Gas & Electric Company (SDG&E) had
sent a notice that numerous attempted payments from Jay’s bank had been
returned for insufficient funds. A copy of this notice was attached to the
petition.
Based on these alleged facts, Karolyn’s petition sought an order
revoking Gordon’s authority as attorney-in-fact pursuant to section 4541,

subdivision (d),7 on the ground that Gordon had violated his fiduciary duties
as attorney-in-fact by wrongfully taking assets belonging to Jay and his

7 Section 4541, subdivision (d), provides that a petition may be filed to
“[d]eclar[e] that the authority of the attorney-in-fact is revoked on a
determination by the court of all of the following: [¶] (1) The attorney-in-fact
has violated or is unfit to perform the fiduciary duties under the power of
attorney[;] [¶] (2) At the time of the determination by the court, the principal
lacks the capacity to give or to revoke a power of attorney[;] [¶] (3) The
revocation of the attorney-in-fact’s authority is in the best interest of the
principal or the principal’s estate.”

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living trust; that Jay lacked the capacity to revoke the DPOA; and that it was
in Jay’s best interest to revoke Gordon’s authority in order to prevent further
unauthorized depletion of Jay’s assets by Gordon.
Karolyn also averred she would amend the petition “at a later date” to
include a prayer for relief for an order compelling an accounting. (§ 4541,

subd. (c).)8 Karolyn averred she had demanded Gordon account and report
for his acts as attorney-in-fact, and that she anticipated Gordon would refuse
to so account “and thereby disclose his breaches of fiduciary duty.”
B. Gordon’s Verified Objection
On March 26, 2021, Gordon filed a verified objection to Karolyn’s
petition. Gordon denied Jay lacked capacity and denied committing the acts
of financial elder abuse alleged by Karolyn. He averred that Karolyn was
estranged from Jay, that she had “unsuccessfully tried to have her father
conserved by this Court in 2019,” and that she was “presum[ing] to impose
herself between her fully capacitated father and his decade’s long choice of
his son to assist him personally and financially.” He further averred that
Karolyn had sent “hateful” texts and emails to Jay, and had sent emails to
Jay’s sister in which she expressed animosity toward Jay. He attached copies
of these texts and emails to his objection. Gordon asserted that it was “hard
to imagine a person less suited to insert herself in her father’s affairs under
the guise of trying to protect him from his son.” He asked the court to deny

8 Section 4541, subdivision (c), provides that a petition may be filed to:
“Compel[ ] the attorney-in-fact to submit the attorney-in-fact’s accounts or
report the attorney-in-fact’s acts as attorney-in-fact to the principal, the
spouse of the principal, the conservator of the person or the estate of the
principal, or to any other person required by the court in its discretion, if the
attorney-in-fact has failed to submit an accounting or report within 60 days
after written request from the person filing the petition.”

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Karolyn’s petition in its entirety and to award him his attorney fees and
costs.
C. Initial Hearing
On March 30, 2021, four days after Gordon filed his verified objection,
the probate court held the initial hearing in the case, which Karolyn, Gordon,
and Jay attended. At the time the hearing went forward, the only documents
filed by the parties were Karolyn’s verified petition and Gordon’s verified
objection.
At the start of the hearing, the court observed that in addition to the
“new petition,” Karolyn also had a “civil action” and “trust action” pending,
and that “[t]he conservatorship is in the rearview mirror.” (See footnotes 4, 5,
and 6, ante.) Karolyn’s counsel informed the court that “the bulk” of Jay’s
assets appeared to be in trust, but cautioned this was unconfirmed as he had
not yet received discovery responses from Gordon or Jay. He stated that
Karolyn was planning to amend her petition to seek an accounting “for the
period of 2017 up through the present time.” The court suggested, and
Karolyn’s counsel agreed, that it would be appropriate to “just take this off
calendar . . . and . . . await [for the] amended petition[.]”
The court requested input from other counsel. Gordon’s counsel asked

the court to dismiss Karolyn’s petition pursuant to section 4543,9 stating,
“[t]here is no way that Karolyn Kovtun is an appropriate person to try to
supposedly protect her father from his own choices for an agent.” Counsel
argued that Jay did not lack capacity, that “[t]his [power-of-attorney]

9 Section 4543 provides “[t]he court may dismiss a petition if it appears
that the proceeding is not reasonably necessary for the protection of the
interests of the principal or the principal’s estate and shall stay or dismiss
the proceeding in whole or in part when required by Section 410.30 of the
Code of Civil Procedure.”

6
designation has been standing since 2009, was renewed in 2017,” and that
the Probate Code provided the court with dismissal authority “in these kind
of situations to say this petition isn’t necessary.” She argued “the same is
going to be true with an accounting petition.” Jay’s counsel agreed, stating
he thought Karolyn’s petition was “completely frivolous.”
Karolyn’s counsel responded that Karolyn, as Jay’s daughter, had

standing to bring a petition under section 4540, subdivision (d).10 He
objected to the request for dismissal, arguing “the Court cannot dismiss this
without any evidence whatsoever.” He asserted it would be premature for
the court to dismiss the petition when discovery had not yet been completed.
The court agreed with Karolyn’s counsel that Karolyn, as a relative of
the principal, had standing to bring the petition. But it would nevertheless
“take [Gordon’s counsel’s] suggestion” and dismiss Karolyn’s petition
pursuant to section 4543. The court found the petition was not reasonably
necessary for the protection of the interest of Jay or his estate. It observed
that to revoke Gordon’s authority, it had to make three findings under section
4541, subdivisions (d)(1) to (d)(3). As to the first, the court acknowledged
Karolyn claimed Gordon had been violating his fiduciary duties. On the
second required finding, the court expressed doubt about the factual basis of
Karolyn’s allegations that Jay lacked capacity, stating: “[A]t least people who
bring petitions alleging lack of capacity have some basis for that. Like they’ll
say this is what’s been happening, this is why we think there is a lack of
capacity.” With regard to the third required finding, it questioned whether
revocation was in Jay’s best interest, stating, “I don’t hear anything that Jay
is suffering in any way by the conduct of Gordon.” The court further stated

10 Section 4540, subdivision (d), provides that “a petition may be filed
under this part” by “[a] relative of the principal.”

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the petition “seem[ed] unsupported” and “unreasonable,” and that “it does not
seem to be in [Jay’s] best interest.” The court then dismissed the petition
with prejudice.
Turning to Karolyn’s anticipated request for an accounting, the court
stated, “I am not ordering an accounting.” Karolyn’s counsel responded that
he intended to amend the petition not only to add a request for accounting,
but to add further allegations of Jay’s incapacity. The court declined to await
the amendments, stating Karolyn had failed to prove Jay’s incapacity in her
petition for conservatorship, and that it was “not interested” in hearing
further from Karolyn about Jay’s incapacity.
Gordon’s counsel then requested that the court award Gordon his
attorney fees under section 4545, subdivision (a). The court agreed to do so,
and stated the amount of fees would be determined by an ex parte petition.
On March 30, 2021, the court issued a minute order dismissing the
petition with prejudice. The minute order further provided, “Attorney fees as
to [Gordon’s attorney] are granted pursuant to [section 4545, subdivision (a)],
and the amount to be determined via Ex Parte Appearance.” On April 23,
2021, the court awarded Gordon $6,877 in attorney fees and costs.
On May 13, 2021, Karolyn timely appealed the March 30, 2021 minute

order.11
DISCUSSION
Before turning to the merits of this appeal, we first consider whether
an event that occurred after the notice of appeal was filed has rendered this
appeal moot.

11 An order dismissing a petition under section 4543 is an appealable
order. (§ 1302, subd. (b).)

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 I.
Jay’s Death During the Pendency of This Appeal Does Not Moot the Appeal
After Karolyn filed her opening brief on appeal and shortly before
Gordon filed his respondent’s brief on appeal, Jay passed away. After Gordon
alerted us to this development in his respondent’s brief, at our request, both
sides submitted supplemental letter briefs addressing whether Jay’s death

rendered this appeal moot.12 Both sides contend the appeal is not moot,
although for different reasons.
Gordon observes in his supplemental brief that pursuant to section
4152, subdivision (a)(4), the death of the principal terminates a power of
attorney. He contends that Jay’s death therefore moots Karolyn’s petition for
revocation of his authority under the DPOA. However, he claims this appeal
is not moot because Karolyn is still entitled to have the probate court’s award

of $6,877 in attorney fees and costs to him reviewed for abuse of discretion.13
Karolyn contends that Jay’s death has only partly mooted her petition.
She agrees that death of the principal terminates a power of attorney, and
there is now no longer a need for an order revoking Gordon’s authority to act
as Jay’s attorney-in-fact. But she contends this still leaves her request for an
order compelling Gordon to account for his acts as attorney-in-fact, which was
factually supported by the allegations of the petition regarding Gordon’s
breaches of fiduciary duty, and which she had sought to add to the petition by
amendment when the petition was dismissed. She also agrees with Gordon

12 The parties have stipulated that Jay passed away in December 2021.

13 According to the superior court’s register of actions for this case, on
April 23, 2021, the probate court entered an order granting Gordon’s ex parte
application for attorney fees and costs. As we discuss, the April 23 order was
not included in the record on appeal.

9
that she is entitled to review of the $6,877 award of Gordon’s attorney fees
and costs for abuse of discretion.
“ ‘ “Generally, an appeal will be dismissed as ‘moot’ when, through no
fault of respondent, the occurrence of an event renders it impossible for the
appellate court to grant appellant any effective relief.” ’ ” (Noergaard v.
Noergaard (2020) 57 Cal.App.5th 841, 852 (Noergaard).) “We will not render
opinions on moot questions or abstract propositions, or declare principles of
law which cannot affect the matter at issue on appeal.” (Daily Journal Corp.
v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557.)
Whether an appeal is moot depends on whether a decision on the
merits will provide “ ‘ “any effective relief.” ’ ” (Noergaard, supra, 57
Cal.App.5th at p. 852.) “The legal test for effective relief is whether there is a
‘prospect of a remedy that can have a practical, tangible impact on the
parties’ conduct or legal status.’ ” (Delta Stewardship Council Cases (2020)
48 Cal.App.5th 1014, 1053 (Delta Stewardship).) “If the issues on appeal are
rendered moot, a reversal would be without practical effect, and the appeal
will be dismissed.” (Building a Better Redondo, Inc. v. City of Redondo Beach
(2012) 203 Cal.App.4th 852, 866.)
The issue raised in this appeal is whether the probate court committed
procedural error by dismissing Karolyn’s petition at the initial hearing,
without prior notice, without allowing for completion of discovery, and
without considering evidence. Whether reversal of the order dismissing
Karolyn’s petition will provide effective relief turns on whether there is any
remaining relief to be obtained through the petition.
The parties agree the death of the principal terminates the authority of
an attorney-in-fact under a power of attorney. (§ 4152, subd. (a)(4).) We
observe that there is an exception: Section 4152, subdivision (a)(4), states

10
that death of the principal terminates the authority of an attorney-in-fact
under a power of attorney, “except as to specific authority permitted by statute
to be exercised after the principal’s death.” (Italics added.) However, the

parties have not identified any exceptions that might apply.14 Furthermore,
Karolyn, the petitioning party, takes the position that her request for an
order revoking Gordon’s power as attorney-in-fact for Jay is no longer
necessary. Accordingly, we accept that this is so.
Karolyn contends her petition is nevertheless not moot due to her
impending request for an accounting. She points out that her petition alleged
facts supporting an accounting from Gordon, that her prayer for relief
generally sought “ ‘such other and further orders as the court deems just and
proper,’ ” and that she specifically indicated an intent to amend her petition
to seek an order compelling an accounting.
We agree with Karolyn that her petition is not moot by virtue of her
anticipated request for an accounting. Although Jay’s death terminated
Gordon’s authority as attorney-in-fact, it did not relieve him of the duty to
account for his actions as attorney-in-fact. “Termination of an attorney-in-
fact’s authority does not relieve the attorney-in-fact of any duty to render an
account of actions taken as attorney-in-fact.” (§ 4238, subd. (c).) The court,
in dismissing the petition, deprived Karolyn of the opportunity to amend. If

14 The Law Revision Commission’s revised comment to section 4152 states
that subdivision (a)(4) “recognizes that certain tasks may remain to be
performed after death,” and cites section 4238 as an example of such tasks.
(Cal. Law Revision Com. rev. com., 52B West’s Ann. Probate Code (2009 ed.)
foll. § 4152, p. 273.) Section 4238 identifies a number of duties to be
performed by the attorney-in-fact upon termination of authority (such as
“promptly deliver[ing] possession or control of the principal’s property”
(§ 4238, subd. (a)) and “deliver[ing] copies of any records relating to
transactions undertaken on the principal’s behalf” (§ 4238, subd. (b)).

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we decide the court erred and reverse the order of dismissal, Karolyn’s
opportunity to amend the petition to seek an accounting will be restored.
Moreover, Karolyn’s ability to amend her petition to assert this claim is
not a meaningless procedural right. Because the court’s order dismissed the
petition with prejudice, if left undisturbed, it will bar Karolyn from seeking
an accounting in a new petition. (See Federal Home Loan Bank of San
Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527
[“ ‘ “Dismissal with prejudice is determinative of the issues in the action and
precludes the dismissing party from litigating those issues again.” ’ ”].) This
is so even though at the time of the dismissal, Karolyn had not yet amended
the petition to assert her request for an accounting. Gordon’s counsel argued
an accounting was unnecessary, and in dismissing the petition, the court
anticipated the request and specifically denied an accounting. “This issue
having been actually litigated and determined in the action, the finding
thereon will operate as collateral estoppel in any subsequent action[.]”
(Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24
Cal.App.4th 1837, 1843 (Cinnamon Square); see In re Prather (2010) 50
Cal.4th 238, 260 [“It is black letter law that ‘[r]es judicata bars the litigation
not only of issues that were actually litigated in the prior proceeding, but also
issues that could have been litigated in that proceeding.’ ”].) The dismissal, if
not reversed, will serve to preclude Karolyn from pursuing this request in the
future. Accordingly, this appeal is not moot, because a decision on the merits
of the appeal will have a “ ‘tangible impact’ ” on the parties. (Delta
Stewardship, supra, 48 Cal.App.5th at p. 1053.)
Further still, the parties agree this appeal is not moot for an additional
reason, namely that there is the remaining issue of the court’s award of
Gordon’s attorney fees and costs. We agree the award of fees and costs

12
provides an additional reason not to dismiss the appeal on grounds of
mootness, but for a different reason than that asserted by the parties.
Our high court has stated that an otherwise moot appeal “will not be
retained solely to decide the question of liability for costs.” (Paul v. Milk
Depots, Inc. (1964) 62 Cal.2d 129, 134, italics added; see Cinnamon Square,
supra, 24 Cal.App.4th at p. 1843, fn. 2 [interpreting Paul to mean that an
appellate court has discretion to retain an appeal to decide a cost issue, and
“question[ing] the wisdom of mechanically denying review” of a substantial
award of attorney fees and costs].) This suggests that where, as here, the
cost question is not the sole remaining issue but instead is one of multiple
remaining issues, we can consider it as a basis for retaining an appeal.
The probate court awarded Gordon his attorney fees under section
4545, subdivision (a). This provision gives the court discretion to award
reasonable attorney fees to the attorney-in-fact based on a determination that
“the proceeding was commenced without any reasonable cause.” (§ 4545,
subd. (a).) The record does not include information about the basis of the cost
award, but we assume Gordon was awarded costs as the prevailing party.
(See Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 99 [probate court
retains discretion to decide whether costs should be paid to prevailing party];
Estate of Neilson (1960) 181 Cal.App.2d 769, 772 [improper to exercise
discretion and award costs prior to final determination of matter].) We agree
with the parties that if the court erred in dismissing the petition, then the
award of fees and costs to Gordon cannot stand.
Where we differ with the parties is in their view that this court will be
reviewing the award of $6,877.00 to Gordon for an abuse of discretion. We
will not, because Karolyn has not sought review of this award. According to
the register of actions for this case, the order setting the amount of Gordon’s

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fees and costs was entered on April 23, 2021. (This order was not included in
the appellant’s appendix.) In her notice of appeal filed on May 13, Karolyn
specified that she was appealing the probate court’s March 30, 2021 minute
order; she did not reference, attach, or otherwise indicate that she was
appealing the April 23, 2021 order. “ ‘ “Where several judgments and/or
orders occurring close in time are separately appealable . . . , each appealable
judgment and order must be expressly specified--in either a single notice of
appeal or multiple notices of appeal--in order to be reviewable on appeal.” ’ ”
(Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 (Allen), quoting DeZerega v.
Meggs (2000) 83 Cal.App.4th 28, 43.) Not only is the April 23 order not part
of the appellate record, but Karolyn’s opening brief on appeal, which is the
only appellate brief she has filed, does not challenge, seek reversal of, or
include any argument at all addressing the award of Gordon’s attorney fees
and costs. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 fn. 8
[observing that “[a]n appealed-from . . . order is presumed correct” and so “the
appellant must make a challenge”].) In short, Karolyn has taken none of the
steps necessary to appeal the court’s award of Gordon’s attorney fees and
costs. Accordingly, we will not include it in our review.
However, this does not mean the award of Gordon’s attorney fees and
costs will be unaffected by a reversal of the probate court’s dismissal order.
“ ‘An order awarding costs falls with a reversal of the judgment on which it is
based.’ ” (Allen, supra, 94 Cal.App.4th at p. 1284, quoting Merced County
Taxpayers’ Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402.) In Allen, the
appellant failed to file a notice of appeal of a post-judgment order awarding
attorney fees. Although we determined we lacked jurisdiction to review the
award, we stated “this does not mean that an award of attorney fees to the
party prevailing stands after reversal of the judgment.” (Allen, at p. 1284.)

14
We observed that “[a]fter reversal of a judgment ‘the matter of trial costs [is]
set at large.’ ” (Ibid., quoting Purdy v. Johnson (1929) 100 Cal.App. 416,
420.) We stated that although we could not reverse the order granting fees,
“the trial court should do so on remand.” (Allen, at p. 1284.)
Similarly, here, although we will not review the order awarding $6,877
in attorney fees and costs to Gordon, any determination by this court that the
probate court erred in dismissing the petition will fatally undermine the
basis of the fee and cost award, a consequence the probate court can and
should implement upon remand. (Allen, supra, 94 Cal.App.4th at p. 1284.)
Thus, a reversal on the merits will have this additional, tangible effect,
further supporting our conclusion that this appeal is not moot.
II.
The Probate Court Abused Its Discretion
The probate court dismissed Karolyn’s petition pursuant to section
4543, which states, in relevant part, that “[t]he court may dismiss a petition
if it appears that the proceeding is not reasonably necessary for the
protection of the interests of the principal or the principal’s estate[.]”
(§ 4543.) The word “may” signals that the court has discretion in deciding
whether to dismiss a petition pursuant to this provision. Accordingly, we
review the probate court’s dismissal order for an abuse of discretion. “A court
abuses its discretion if ‘ “it exceed[s] the bounds of reason or contravene[s] the
uncontradicted evidence [citation], fail[s] to follow proper procedure in
reaching its decision [citation], or applie[s] the wrong legal standard to the
determination.” ’ ” (Dunlap, supra, 63 Cal.App.5th at p. 424.)
Karolyn contends the probate court committed procedural error and
thereby abused its discretion by dismissing the petition at the initial hearing,
without prior notice that dismissal of the petition would be considered,

15
without giving Karolyn the opportunity to conduct discovery, and without
considering evidence. She contends this issue is governed by this court’s
decision in Dunlap. We agree in part.
Dunlap involved a dispute arising from a marital trust that a husband
established for the benefit of his wife. (Dunlap, supra, 63 Cal.App.5th at
p. 422.) Litigation over the husband’s estate resulted in a settlement
agreement that modified the terms of the marital trust. (Ibid.) The probate
court approved the settlement agreement and, pursuant to its terms,
appointed the wife’s daughter Maria as sole trustee. (Ibid.) After the wife’s
death, her estate filed a petition for an accounting of the marital trust. (Id.
at pp. 422–423.) In response, Maria filed a verified objection in which she
stated, among other things, that she had only been nominally named as
trustee in the settlement agreement, had never acted as trustee of the
marital trust, and could not provide an accounting since she had never served
as trustee. (Id. at p. 423.)
The probate court held an initial case management conference, and set
another case management conference to give the wife’s estate time to conduct
discovery. (Dunlap, supra, 63 Cal.App.5th at p. 423.) Notice of the continued
case management conference “stated only that it was set for a “ ‘[p]rogress
report on pending discovery.’ ” (Id. at p. 427.) By the time of the continued
conference, the wife’s estate had served discovery on Maria but had not yet
received her responses. (Id. at p. 423.) The probate court nevertheless
dismissed the estate’s petition based solely on Maria’s objection. (Ibid.) It
did so without prior notice that the continued conference could result in a
dismissal and without accepting evidence. (Ibid.)
We reversed the order of dismissal in Dunlap. We held that the
probate court, by dismissing the estate’s petition without prior notice,

16
completion of discovery, or consideration of evidence, violated relevant
procedural provisions of the Probate Code and thereby abused its discretion.
(Dunlap, supra, 63 Cal.App.5th at pp. 424–427.) We explained that pursuant
to section 1046, “[w]hen matters within the purview of the Probate Code are
contested, ‘[t]he court shall hear and determine any matter at issue and any
response or objection presented, consider evidence presented, and make
appropriate orders.’ ” (Dunlap, at pp. 425–426, italics added.) The probate
court could not rely on Maria’s objection as the basis for its ruling, even
though it was verified, because the facts were contested, and “ ‘[s]ection 1022
authorizes the use of declarations only in an “uncontested proceeding.” ’ ” (Id.
at p. 426.)
We also found the dismissal procedurally defective because there was
no prior notice to the estate “that dismissal of the petition would be
considered, much less granted” at the continued case management
conference. (Dunlap, supra, 63 Cal.App.5th at p. 427.) We reasoned that
section 1042 requires “ ‘[a] hearing under this code shall be on notice unless
the statute that provides for the hearing dispenses with notice’ ” and the
provisions that gave the court authority to dismiss the estate’s petition did
not dispense with this notice requirement. (Dunlap, at p. 427.) We further
expressed concern about the early, unnoticed dismissal of a petition, noting
that “reviewing courts are ‘increasingly wary’ of using [such] procedural
shortcuts because they ‘circumvent procedural protections provided by the
statutory motions or by trial on the merits’ ” and “ ‘risk blindsiding the
nonmoving party[.]’ ” (Id. at p. 427; see also ibid. [observing that “ ‘[t]he
pretrial proceeding should not become a trap for the unwary’ ”].) We
concluded “[t]he court abused its discretion because it failed to follow the
proper procedure[s] in reaching its decision.” (Ibid.)

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 We acknowledge the probate court did not have the benefit of Dunlap
when it ordered Karolyn’s petition dismissed with prejudice. Nonetheless,
the reasoning of Dunlap applies here and compels the conclusion that the
probate court committed procedural error and abused its discretion in
dismissing the petition. This is so even though Dunlap involved dismissal of
a petition relating to a trust, and this case involves dismissal of a petition
relating to a power of attorney.
For one thing, the dismissal provisions at issue in Dunlap and in this
case are substantively indistinguishable. Section 17202, the dismissal
statute relied on by the probate court in Dunlap, provides that “ ‘[t]he court
may dismiss a petition if it appears that the proceeding is not reasonably
necessary for the protection of the interests of the trustee or beneficiary.’ ”
(Dunlap, supra, 63 Cal.App.5th at p. 423, fn. 3, quoting § 17202, italics
added.) Section 4543, the dismissal statute relied on by the probate court in
this case, provides in relevant part that “[t]he court may dismiss a petition if
it appears that the proceeding is not reasonably necessary for the protection of
the interests of the principal or the principal’s estate[.]” (Italics added.) Both
statutes give the probate court discretion to dismiss a petition on essentially
the same grounds, namely that the proceeding is “not reasonably necessary”
to protect the interests at stake.
For another, proceedings concerning powers of attorney, like
proceedings concerning trusts, are subject to the same general procedural
provisions of the Probate Code, commencing with section 1000 (see § 4505),
that we relied on in Dunlap to conclude that the probate court committed
procedural error in dismissing the underlying petition. (See Dunlap, supra,
63 Cal.App.5th at pp. 426–427 [citing §§ 1022, 1042, 1046].) Thus, the

18
procedural setting of this case is similar to Dunlap, supporting the conclusion
that its reasoning applies to this litigation involving a power of attorney.
Applying the reasoning of Dunlap to this case leads to the conclusion
the probate court erred in dismissing Karolyn’s petition. As we discuss,
Karolyn fails to establish that the same notice deficiency that was present in
Dunlap was also present here. But we conclude the probate court erred as a
matter of procedure, because in dismissing the petition, it resolved contested
issues without considering competent evidence.
We begin with the notice issue. In Dunlap, we concluded the probate
court erred, in part, due to the lack of prior notice to the estate that
“dismissal of the petition would be considered, much less granted.” (Dunlap,
supra, 63 Cal.App.5th at p. 427.) We emphasized that there was “no notice of
dismissal before the conference” and that “[n]otice of the hearing stated only
that it was set for a ‘[p]rogress report on pending discovery.’ ” (Ibid.)
Here, as in Dunlap, notice was required. As we have explained, “[e]xcept as
otherwise provided . . . , the general provisions in Division 3 (commencing
with Section 1000) apply to proceedings under [the Power of Attorney Law].”
(§ 4505.) Section 1042 provides that “[a] hearing under this code shall be on
notice unless the statute that provides for the hearing dispenses with notice.”
As in Dunlap, the relevant dismissal provision in this case does not dispense
with this notice requirement. (See § 4543.)
Even so, it is not apparent from the record before us that Karolyn
lacked prior notice that dismissal would be considered at the initial hearing.
Karolyn, in her appellate brief, in an apparent effort to liken this case to
Dunlap, repeatedly refers to the hearing that resulted in dismissal of her
petition as an “initial case management conference.” She asserts that “[i]n
the case at bar, as in Dunlap, there was no notice that ‘dismissal of the

19
petition would be considered, much less granted.’ ” However, her assertions
are not accompanied by record citations and they are not otherwise borne out
by the record. According to the register of actions for this case, the March 30,
2021 hearing was the first scheduled hearing. However, the entry for this
hearing in the register of actions simply states: “Other (Miscellaneous)
scheduled for 03/30/2021.” The register of actions does not show that the
hearing was scheduled as a case management conference. Moreover, we have
not been provided the notice of this hearing; it was not included in the
appellant’s appendix. Thus, the record before us fails to confirm Karolyn’s
assertion that the initial hearing was scheduled as a case management
conference (as was the case in Dunlap). Nor are we able to confirm that the
notice of hearing failed to apprise Karolyn that dismissal of the petition
would be considered.
We also observe that Gordon, within his verified objection, sought
summary denial of the petition under section 4543. Pursuant to section 1043,
“[t]he court in its discretion shall either hear and determine the response or
objection at the hearing.” From this, it appears Karolyn was not without
notice that dismissal under section 4543 was an issue that could be
considered during the hearing. Karolyn, as the appealing party, bears the
burden of establishing an abuse of discretion, and of providing a record
sufficient to demonstrate that there was such an abuse. (Nelson v. Anderson
(1999) 72 Cal.App.4th 111, 136.) The record before us fails to confirm
Karolyn’s contention that she was not on notice the court would consider
dismissal of the petition at the hearing. Accordingly, we resolve this issue
against Karolyn.
We reach a different result on Karolyn’s other contention, which is that
the probate court erred by dismissing her petition without holding an

20
evidentiary hearing. During the hearing, after Gordon’s counsel requested
dismissal, Karolyn’s counsel objected that “the [c]ourt cannot dismiss this
without any evidence whatsoever.” The court proceeded to dismiss, and in
doing so resolved contested issues without evidence.
Under Dunlap, this was error. “When matters within the purview of
the Probate Code are contested, ‘[t]he court shall hear and determine any
matter at issue and any response or objection presented, consider evidence
presented, and make appropriate orders.’ ” (Dunlap, supra, 63 Cal.App.5th
at pp. 425–426, quoting § 1046.) At the time of the initial hearing, the
petition was contested: Karolyn had filed a verified petition alleging facts
supporting revocation of Gordon’s authority under the DPOA pursuant to
section 4541, subdivision (d), and Gordon had filed a verified objection
denying Karolyn’s allegations and opposing her request. (See Estate of
Lensch (2009) 177 Cal.App.4th 667, 677 [“Respondent’s opposition . . .
transformed appellants’ unopposed petition to a contested one.”].)
In finding that Karolyn’s request for an order revoking Gordon’s
authority as attorney-in-fact was not reasonably necessary for the protection
of Jay’s interest, the probate court in part expressed doubt over Jay’s lack of
capacity. (§ 4541, subd. (d)(2) [providing that a probate court may not issue
an order revoking the authority of the attorney-in-fact unless, “[a]t the time
of the determination by the court, the principal lacks the capacity to give or
to revoke a power of attorney”].) However, whether Jay possessed or lacked
capacity to revoke the DPOA was a contested issue. In her petition, Karolyn
averred, among other facts, that Jay was suffering from significant health
problems, including end-stage renal failure and dementia, that his “mental
deficits. . . had a debilitating effect on his ability to plan, organize, and carry
out actions in his own rational self-interest” and that “[t]hese deficits

21
significantly impair[ed]” Jay’s “ability to understand and appreciate the
consequences of his actions with regard to the management of his financial
resources.” She further averred that “as of the date of the filing of this
petition . . . the Principal lacks the capacity necessary to give or to revoke a
power of attorney.” Gordon, in his verified objection, specifically denied these
allegations.
As in Dunlap, because Jay’s capacity was contested, the probate court
was required to hold an evidentiary hearing and resolve the issue based on
competent evidence. (Dunlap, supra, 63 Cal.App.5th at p. 426 [“ ‘When a
petition is contested, as it was here, . . . absent a stipulation among the
parties to the contrary, each allegation in a verified petition and each fact set
forth in a supporting affidavit must be established by competent
evidence.’ ”].) The only documents before the court at the time of the initial
hearing were Karolyn’s petition and Gordon’s objection. However, these
pleadings, although verified, could not be considered as evidence. (Ibid.
[“ ‘[W]hen challenged in a lower court, affidavits and verified petitions may
not be considered as evidence at a contested probate hearing.’ ”].) In part, the
court also appeared to be influenced by counsels’ assertions during the
hearing that Jay did not lack capacity. But arguments of counsel also are not
evidence. (Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23
Cal.4th 390, 409.)
As another basis for dismissing Karolyn’s petition, the probate court
explained it did not “hear . . . that Jay is suffering in any way by the conduct
of Gordon” and concluded that revoking Gordon’s authority therefore “does
not seem to be in [Jay’s] best interest.” (See § 4541, subd. (d)(3).) However,
Karolyn’s petition contained factual averments describing Gordon’s breaches
of his fiduciary duties as an attorney-in-fact, including specific instances of

22
alleged financial elder abuse that included depletion of “significant sums of
cash” from Jay’s checking account, supported by a copy of an SDG&E notice
requiring future payment of Jay’s accounts to be made by cash or money
order only, due to returned payments for insufficient funds from Jay’s bank.
Karolyn averred that revocation of Gordon’s authority was in Jay’s best
interest in order “to protect the assets of the Principal from further
unauthorized depletion at the hands of Gordon Kovtun.” Gordon’s verified
objection acknowledged the authenticity of the SDG&E notice, but otherwise
specifically denied these allegations. Thus, whether revocation of Gordon’s
authority as attorney-in-fact was in Jay’s best interest was also a contested
issue, and the probate court was not authorized to adjudicate it without
considering evidence. (Dunlap, supra, 63 Cal.App.5th at p. 426.)
In dismissing the petition, the probate court also predetermined the
merits of Karolyn’s anticipated request for accounting (§ 4541, subd. (c)),
specifically ruling that an accounting was not “necessary.” This was
improper, because the petition had not yet been amended to include a request
for an order compelling an accounting. Section 4543 gives a probate court
authority to “dismiss a petition.” Logically, a claim for relief that has yet to
be asserted cannot be dismissed.
In an effort to persuade us to affirm the probate court’s dismissal of the
petition, Gordon argues the court’s decision was informed, at least in part, by
the fact that Karolyn had failed “to [credibly] allege in . . . previous actions”
that Jay’s capacity was “at issue.” As a result, Gordon claims, the probate
court concluded Karolyn’s petition was “ ‘just another attempt to fan the
flames of litigation.’ ” There are two problems with this position. First,
Karolyn’s asserted prior failure to prove Jay’s incapacity would preclude her
from relitigating the issue only if there existed a final decision to that effect.

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“ ‘The doctrine of collateral estoppel or issue preclusion . . . prevents a party
who had a full and fair opportunity to litigate a particular issue in a prior
proceeding from relitigating it in a subsequent proceeding.’ ” (Colombo v.
Kinkle, Rodiger & Spriggs (2019) 35 Cal.App.5th 407, 416.) “[I]ssue
preclusion applies (1) after final adjudication (2) of an identical issue (3)
actually litigated and necessarily decided in the first suit and (4) asserted
against one who was a party in the first suit or one in privity with that
party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) Here,
although the probate court did express frustration over a prior, unsuccessful
conservatorship petition filed by Karolyn, Gordon fails to establish that this
or any other prior proceeding initiated by Karolyn resulted in a final

adjudication of Jay’s capacity.15

15 On December 15, 2021, Gordon filed a motion seeking judicial notice
pursuant to Evidence Code section 452 of the superior court registers of
actions pertaining to five civil cases filed by Karolyn against various
members of her family. On January 10, 2022, we denied the request as moot
to the extent it sought judicial notice of the superior court’s register of actions
for this case, because it is already part of the appellant’s appendix. We now
deny the balance of the request. Judicial notice may be taken of a superior
court’s register of actions pursuant to Evidence Code section 452, subdivision
(d). (See, e.g., D. Cummins Corp. v. United States Fidelity & Guaranty Co.
(2016) 246 Cal.App.4th 1484, 1492, fn. 8.) However, an appellate court “may
decline to take judicial notice of matters not relevant to dispositive issues on
appeal.” (Guarantee Forklift, Inc. v. Capacity of Texas, Inc. (2017) 11
Cal.App.5th 1066, 1075.) Here, Gordon argues the registers of actions are
relevant because in one of the cases (which he does not identify) the probate
court rejected an incapacity argument from Karolyn, because the cases all
sought “similar or identical relief,” and because the existence of the cases
demonstrates that they are “frivolous.” We disagree that the registers of
actions submitted by Gordon support any of these propositions. A register of
actions lists documents filed in the superior court but does not set forth the
contents of the filed documents. Because the asserted relevance of the
records to be judicially noticed depends on our ability to draw inferences that
the records themselves do not support, and Gordon does not otherwise
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 Second, section 4541, subdivision (d), requires the court to make a
current determination of the principal’s lack of capacity. (See § 4541, subd.
(d)(2) [providing that the court must determine whether, “[a]t the time of the
determination by the court, the principal lacks the capacity to give or to
revoke a power of attorney”].) Even assuming there existed a prior, final
determination of Jay’s capacity, any such decision necessarily could not serve
as a current determination of his capacity. Therefore, Karolyn’s asserted
failure to adequately establish Jay’s incapacity in the past would not preclude
her from attempting to demonstrate that his faculties in their present state
supported revocation of Gordon’s authority pursuant to section 4541,
subdivision (d).
In sum, we conclude the probate court erred by dismissing Karolyn’s
petition without holding an evidentiary hearing or considering competent
evidence. (Dunlap, supra, 63 Cal.App.5th at pp. 425, 427.) The court also
erred in adjudicating Karolyn’s anticipated request for accounting because
the authority to dismiss a petition under section 4543 does not encompass
dismissal of unasserted claims. We conclude, as we did in Dunlap, that “[t]he
court abused its discretion because it failed to follow the proper procedure in
reaching its decision.” (Dunlap, at p. 427.)
DISPOSITION
We reverse the order of the probate court and remand for further
proceedings in accordance with this opinion.

establish the records are relevant to the disposition of this appeal, we deny
his request for judicial notice for the remaining registers of actions.

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 DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

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