Filed 8/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B307338
and Estate of NORMA (Super. Ct. No. 56-2016-00483787-PR-
FARRANT. CP-OXN)
(Ventura County)
ANGELIQUE FRIEND, as
Conservator, etc.,
Petitioner and Respondent,
v.
DUANE FARRANT,
Objector and Appellant.
This case serves as a textbook example of how a fiduciary
should not proceed. Appellant continues to demonstrate that he
has no concept of his duty to his elderly and incapacitated mother
and her conservatorship estate. This is Duane Farrant’s third
appeal concerning the conservatorship of the person and estate of
his mother, Norma Farrant (Norma or conservatee). (See
Conservatorship of Farrant, (Aug. 22, 2019, B289203) [nonpub.
opn.] and (Feb. 22, 2021, B306501) [nonpub. opn.].) 1 He appeals
from orders requiring him to pay $63,448.90 for misappropriation
of Norma’s assets, surcharging in the same amount appellant’s
share of interpled funds, and imposing sanctions of $121,000 for
failing to timely file an accounting of his actions relating to
Norma’s estate. Appellant contends that the probate court
erroneously (1) ordered him to render an accounting because he
did not owe a fiduciary duty to the estate, (2) based its decision
on affidavits and declarations, and (3) denied his request for an
evidentiary hearing. We affirm.
Factual and Procedural Background
Norma was born in 1926. In 2008 she executed a durable
power of attorney granting appellant, as her attorney-in-fact,
broad powers to manage her property. The power of attorney
would become effective upon a determination that Norma was
“‘incapacitated.’”
In September 2015, when Norma was living in Missouri, a
Missouri court ordered appellant to account for all transactions
conducted by him on behalf of Norma during the one-year period
beginning on September 21, 2014. In 2016 Norma moved back to
California.
In January 2017 Angelique Friend, respondent, was
appointed conservator of Norma’s person and estate. In
November 2017 Diana Farrant (Diana), Norma’s daughter, filed a
1 In the first appeal appellant appealed from an order
directing the sale of a residence in Newbury Park (the Newbury
Park property). We dismissed the appeal as moot because the
property had already been sold. In the second appeal we affirmed
an order voiding a deed in which appellant’s mother had
purportedly quitclaimed the Newbury Park property to him
before it was sold.
2
petition in the Ventura County Superior Court to compel
appellant “to account for his actions on behalf of Norma Farrant
for the period September 21, 2014, to date . . . .” As an exhibit to
her complaint, Diana attached proof that a physician had
examined Norma on June 12, 2015. He opined that Norma is
“incapacitated” because “she is unable (completely & totally) to
receive & evaluate information or to communicate decisions such
that she lacks capacity to meet essential requirements for food,
clothing, shelter and safety.” She was living in a skilled nursing
facility.
In February of 2018, the probate court conducted a hearing
on Diana’s petition. Diana’s counsel said his client was “just
piggybacking on the Missouri order” that appellant account for
the one-year period beginning on September 21, 2014. He
asserted that appellant had “never complied with the Missouri
order.”
At the hearing appellant appeared in propria persona. He
told the court that on September 21, 2014, he had control over
Norma’s pension checks and her share of the rental income from
the Newbury Park property. (See fn. 1 at p. 2, ante.) The probate
court ordered appellant “to do a formal account -- for the period
September 21, 2014, to January 31, 2018 -- . . . for any pension
checks you received on behalf of [Norma] and any rental monies
you received on [her] behalf . . . .” The accounting was due on or
before March 30, 2018.
In a minute order dated July 10, 2018, the court noted that
appellant had failed to file the accounting. The court ordered
appellant “to appear in person or by video court call on October
16, 2018, . . . and show cause for failure to file his account as
ordered.”
3
At the hearing on October 16, 2018, appellant was not
present in person or by video court call. His attorney, Mr.
Dickens, appeared in court on his behalf. The probate court
issued orders to show cause why sanctions should not be imposed
against appellant for failing to appear personally or by video
court call and for failing to file an accounting. It ordered
appellant to file the accounting on or before December 14, 2018.
The court warned appellant’s counsel: “Now, make no mistake,
Mr. Dickens, the hammer is coming down very hard if I don’t get
a good accounting. There are no more excuses. There is no more
delay. . . . This is the last . . . continuance that he’s going to get
to get this accounting filed . . . .”
On January 29, 2019, the probate court conducted a
hearing on the orders to show cause. Appellant and his counsel
personally appeared in court. Counsel said the accounting had
not been prepared. Counsel explained: “[M]y client . . . made
diligent efforts . . . trying to get the bank statements and he was
unsuccessful, but we will subpoena those records and I will get
the accounting in if you give us a reasonable amount of time.” “I
believe there was a flood, a lot of [appellant’s] records were
damaged, and so that’s why we’re having to subpoena them [from
the banks].”
Counsel for respondent (conservator Friend) protested:
“[T]his is the fourth or fifth time we have been here since the
initial order. Each time it’s the same argument. . . . We have
racked up over $100,000 in fees . . . , all needlessly.” The court
responded: “The Court . . . has heard about every excuse in the
book as to why [the accounting] hasn’t been provided. . . . I am
left really with no confidence that this will actually occur, despite
Counsel’s representations to the contrary. [¶] The Court does
4
find it in the best interest of this estate to impose sanctions
[against appellant] of $1,000 per day until the accounting is
filed . . . .”
On May 31, 2019, appellant filed an accounting. 2 It showed
that he had received two payments of rental income for October
and November 2014. Each payment was $2,575. For the period
from September 16, 2014 through November 10, 2017, appellant
listed disbursements totaling $44,322.05 for expenses he had
incurred in maintaining the Newbury Park property. The
accounting mentioned nothing about Norma’s pension income.
The accounting included bank statements on which most of the
information had been redacted.
At a hearing on September 27, 2019, appellant appeared
with new counsel (Mr. Uku). The probate court granted counsel’s
request to file an amended accounting on or before December 20,
2019. The due date was later extended to January 30, 2020. The
court found that appellant had “failed to file an Amended
Account.”
In June 2020 respondent filed an objection to appellant’s
accounting. After hearings conducted in July 2020, the probate
court found that: (1) appellant “was in control of [Norma’s]
pension income in the amount of $35,656.76, and failed to report
said income in his account, and breached his fiduciary duty by
comingling funds and self-dealing by using them for his own
purposes”; (2) for the Newbury Park property, appellant received
rental income of $101,150, one-half of which ($50,575) belonged
to Norma since she owned a half-interest in the property; and (3)
expenses for the Newbury Park property totaled $45,565.72, one-
2This was four years after he had been ordered to file an
accounting in Missouri in 2015.
5
half of which ($22,782.86) was allocable to Norma’s half-interest
in the property. Therefore, the amount owed by appellant to
Norma was $63,448.90 ($35,656.76 + $50,575 - $22,782.86 =
$63,448.90). The court ordered appellant to pay this amount to
“the Conservatorship Estate of Norma Farrant.” The court also
ordered that appellant’s “share of the [proceeds from the] sale of
the [Newbury Park] property . . . is hereby surcharged
. . . $63,448.90.” Pursuant to an interpleader action, the sale
proceeds had been deposited with the court. Counsel for
respondent claimed that appellant had “already . . . received
$150,000 out of the interple[]d funds.”
Finally, the court ordered appellant to pay sanctions
totaling $121,000 for the 121-day period from January 29, 2019,
to May 31, 2019, when appellant filed his accounting. The court
directed: “This sanctioned amount shall be immediately paid by
[appellant] to Angelique Friend, Conservator of the Estate of
Norma Farrant, and shall be a judgement against [appellant],
until paid in full.” 3
3 On January 29, 2019, the probate court ordered sanctions
at the rate of $1,000 per day until the accounting was filed. This
was fair warning. Nevertheless, appellant contends: “[T]he order
imposing the $1,000 daily sanctions for failure to file accounting
should be set aside for violation of the appellant’s due process
rights because the Notice of the Ruling of the said order” was not
filed until a week later. This contention borders on being
ridiculous. Appellant has not shown how the one-week filing
delay prejudiced him. Appellant, not the courts, engaged in
lengthy and unexplained delay. Appellant is fortunate that he
was not the subject of contempt proceedings and/or referral to the
district attorney’s office for financial elder abuse investigation.
6
Claim that Probate Court Erroneously Ordered
Accounting Because Appellant Was Not a Fiduciary
A probate court generally has discretion to grant or deny a
petition for an accounting, and the court’s decision is reviewed for
abuse of discretion. (See Christie v. Kimball (2012) 202
Cal.App.4th 1407, 1413 [“Determining the need for an accounting
is a matter within the trial court’s sound discretion”]; Esslinger v.
Cummins (2006) 144 Cal.App.4th 517, 520.) “‘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 (Denham).)
When the probate court ordered appellant to account, the
court said, “[I]t’s a standard, when there’s a fiduciary, to do a
formal account.” Appellant claims that the probate court abused
its discretion and acted “in excess of [its] jurisdiction” because he
did not owe a fiduciary duty to conservatee’s estate. He is wrong.
First, “a fiduciary relationship between the parties is not
required to state a cause of action for accounting. All that is
required is that some relationship exists that requires an
accounting. [Citation.] The right to an accounting can arise from
the possession by the defendant of money or property which,
because of the defendant's relationship with the plaintiff, the
defendant is obliged to surrender.” (Teselle v. McLoughlin (2009)
173 Cal.App.4th 156, 179-180.) In open court appellant said that
on September 21, 2014, he had control over Norma’s pension
checks and her share of the rental income from the Newbury
Park property. Appellant was obliged to surrender these
payments to the conservatorship estate. Thus, there was a
7
special relationship between appellant and Norma that
warranted the order compelling appellant to account for the
pension checks and rental income.
Second, the court did not err because there was a fiduciary
relationship between appellant and Norma. Probate Code section
39 provides: “‘Fiduciary’ means . . . attorney-in-fact under a
power of attorney . . . .” In 2008 Norma appointed appellant as
her attorney-in-fact under a durable power of attorney, the
appointment to become effective upon a determination that she
was incapacitated. In January 2009 appellant accepted the
appointment in writing. In June 2015 a physician opined that
Norma was incapacitated. Respondent’s counsel told the court,
“We do know that [appellant] signed . . . a deed on the [Newbury
Park] property using that power of attorney, because that’s
recorded, but we don’t know what else he did with it.” It was
reasonable for the probate court to draw the inference that, in
exercising control over Norma’s pension checks and half-share of
the rental income, appellant was purporting to act as her
attorney-in-fact under the durable power of attorney. The
minute order for the hearing conducted on February 20, 2018,
states, “The court grants the petition ordering [appellant] to file a
statutorily compliant accounting for his activities as actual or
ostensible attorney-in-fact for the [Newbury Park] real
property . . . .”
Appellant Forfeited Claim that the Probate Court’s
Order Was Based on Affidavits and Declarations
For the first time on appeal, appellant contends that the
probate court “abused its discretion and committed reversible
error in . . . basing its decision on affidavits and declaration
against appellant’s objection.” (Bold and capitalization omitted.)
8
“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.) “[T]he
Probate Code limits the use of affidavits to ‘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;
see also Prob. Code § 1022.)
The probate proceeding here was contested. But appellant
did not object to the probate court’s consideration of affidavits
and declarations. By failing to object, appellant forfeited the
issue. The probate court properly considered the affidavits and
declarations. (Estate of 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”].)
The Probate Court Properly Denied
Appellant’s Request for an Evidentiary Hearing
Appellant argues that the probate court “abused its
discretion and committed reversible error in denying [his] request
for evidentiary hearing.” (Bold and capitalization omitted.) The
standard of review is abuse of discretion. (See Estate of Lensch
(2009) 177 Cal.App.4th 667, 676.)
Appellant has failed to show an abuse of discretion. (See
Denham, supra, 2 Cal.3d at p. 566.) Instead of specifying the
factual issues he intended to litigate and the relevant evidence
9
(testimony and exhibits) he would produce at the hearing,
appellant’s counsel made vague representations. 4
In the prior appeal decided in February 2021,
Conservatorship of Farrant (B306501), supra, appellant
contended that the trial court had abused its discretion in
denying his request for an evidentiary hearing concerning the
disputed ownership of the Newbury Park property. We rejected
appellant’s contention for the same reasons that we reject his
contention in the present appeal. We stated: “[A]ppellant . . .
requested an evidentiary hearing without specifying the factual
issues he intended to litigate at the hearing and without
4 Counsel said: “[A]lmost all of the issues raised by the
OSC would dissipate through an evidentiary hearing of the
accounting where my client would take this time and explain
what happened.” “[A]ll we asking for is for a hearing on these
issues raised by the [court’s] tentative [ruling] and . . . what is on
calendar today. We believe that if there’s a full evidentiary
hearing, the Court may change its mind, and the result would be
different.” “I believe that my client wants an opportunity to be
heard. That is his instruction. He wants to address the Court
then. . . . He wants . . . testimony taken. . . . And he believes
that you have a fairer shape if he comes to court and the Court
examines him in person and to correct some of this notions that
he believes the Court now has them.” “[H]e wants to be able to
demonstrate to the Court that he cooperated with counsel. He
did what he could in good faith. And he believes that his
credibilities are at issue, and he believes that that can be righted
with an evidentiary hearing. [¶] . . . And he asked me to clear
with the Court to hear him out in person. . . . [¶] . . . [J]ust for
fairness reasons, let’s give him his day in court.” “[H]e believes
that if the Court give[s] him an opportunity to address the Court
and make additional inquiry contemporaneously, . . . he would
come out better, and the sanction at least could be reduced.”
10
explaining why a hearing was necessary. . . . [¶] 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.” (Id.,
slip opn. at pp. 8-9.)
Appellant Has Not Shown Prejudice
“[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 cannot be made 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”];
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”].) Appellant does not discuss the
issue of prejudice. Accordingly, appellant has failed to carry his
burden of showing that the alleged abuse of discretion prejudiced
him.
New Claims in Appellant’s Reply Brief
Appellant makes two new claims in his reply brief. First,
appellant claims that, because the Probate Court awarded
sanctions pursuant to Code of Civil Procedure section 177.5, the
amount of sanctions was limited to $1,500. Section 177.5
provides, “A judicial officer shall have the power to impose
11
reasonable money sanctions, not to exceed fifteen hundred dollars
($1,500), notwithstanding any other provision of law, payable to
the court, for any violation of a lawful court order by a person,
done without good cause or substantial justification.” (Italics
added.)
The probate court did not impose section 177.5 sanctions
payable to the court. It ordered that sanctions be payable to the
conservatorship estate. (See Padron v. Watchtower Bible & Tract
Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1264 [court
upheld award of sanctions at rate of $4,000 per day for refusal to
comply with discovery order where sanctioned party “abused the
litigation process and has shown little respect for the superior
court's authority”].)
The second new claim is that the probate court’s order
imposing sanctions violated rule 2.30 of the California Rules of
Court (rule 2.30). Appellant’s claim lacks merit. Rule 2.30 is
inapplicable. It permits sanctions to be imposed for violations of
“the rules in the California Rules of Court . . . .” (Rule 2.30(a);
see also rule 2.30(b).) Appellant was not sanctioned for violating
a rule of the California Rules of Court. He was sanctioned for
failing to prepare and file an accounting in violation of the
probate court’s express order.
Disposition
The orders appealed from are affirmed. Respondent shall
recover her costs on appeal.
12
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
13
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.