Conservatorship of Kurrus

Filed 3/27/06 Conservatorship of Kurrus CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Victoria Starkey is the daughter of deceased conservatee Elizabeth Kurrus. The public guardian had served as the conservator, during which time it prepared two conservatorship accountings, which the court approved. Starkey argues that the trial court prevented her from filing objections to the accountings, the substance of which were allegations of misconduct on the part of the public guardian. The court refused to consider Starkey's objections because she failed to comply with procedural formalities in presenting them to the court. We affirm.

FACTS

In 1995, Kurrus executed durable powers of attorney for financial management and health care, appointing her daughter, Starkey, as her attorney in fact. Starkey is a resident of Arizona. On October 11, 2001, the Public Guardian of Santa Barbara (respondent) was appointed as a temporary conservator of the person and estate of Kurrus. It was undisputed that the conservatee was 79 years old and suffered from dementia and other health problems that rendered her bedridden and in need of total assistance with her daily needs. Respondent was represented by county counsel.

Starkey filed an objection to the respondent's appointment and petitioned to be appointed as conservator. Starkey and respondent subsequently stipulated that Starkey's powers would be "suspended" while respondent served as temporary conservator. The conservatee was placed in a private care facility. A formal conservatorship was established on April 8, 2002, with respondent named as conservator.

Starkey continued to monitor the conservatee's medical care and repeatedly expressed grave concern over the quality of her treatment. Over the next two years, Starkey became increasingly disruptive when visiting the care facilities. Respondent attempted to limit her visits, but this proved unsuccessful, so it obtained a restraining order, prohibiting Starkey from contact with the conservatee. However, respondent filed a request for dismissal of the restraining order several days after it issued. The conservatee died on July 16, 2004.

First Accounting

The first accounting spanned the period of October 11, 2001 through April 8, 2003. Starkey and her counsel were given notice that the hearing on the first accounting was set for December 9, 2003. However, at the request of the court investigator, the matter was continued to January 6, 2004. The clerk gave notice of the continuance to the investigator and county counsel, but failed to send notice to Starkey or her counsel. The petition was approved by the trial court, without objection, on January 7, 2004. That order is now final and the matter was not appealed.

Special Needs Trust

Starkey is the beneficiary of a special needs trust established by the conservatee. The conservatee owned a condominium in Arizona which she had placed in the trust. In November 2001, Starkey received a notice of default for nonpayment of the mortgage. Starkey demanded that respondent bring the mortgage current, but it refused. Respondent informed the trustee by letter in December 2001 of the default notice. It indicated that, absent a court order, it could not expend conservatorship funds to preserve an asset of the special needs trust. Starkey also claimed that respondent should pay the mortgage on a second condominium in Arizona. Respondent later learned the second unit was owned by appellant's brother, thus outside the conservatee's estate or the trust. Starkey took no action to challenge respondent's decision regarding the first condominium.

Second and Final Accounting

The accounting period for the second and final accounting ran from April 9, 2003 through July 16, 2004. Respondent filed a petition for approval of the second and final accounting, petition for fees and for discharge of conservator on death of conservatee. The matter came on for hearing on September 28, 2004. Starkey was represented by Robert B. Maxwell. He asked the court to allow him to file objections to the accounting. The court granted permission and continued the hearing to November 23, 2004.

At the November 23 hearing, the court indicated that it would continue the hearing to February 1, 2005, because Starkey had failed to properly file her objections. The court noted that the documents that Maxwell had allegedly filed on September 28 were not in the court file and it struck three documents that were "impermissibly filed in violation of California law." Those documents bore Maxwell's name, bar number and address but were prepared and signed by Starkey.^[1] Attached as exhibits were photocopies of photographs depicting the conservatee in various care facilities.

The court stated in its written ruling, "[a]s an officer of the Court, Mr. Maxwell owes significant duties to the court, not the least of which are those set forth in [Code of Civil Procedure] Section 128.7 [subdivision] (b). Mr. Maxwell cannot avoid his obligations to the court by allowing his client to prepare and sign documents, and assist in their filing by serving them. [¶] These documents are therefore stricken. As a result, the petition to re-open the first accounting is not before the court at this time. The matters set forth in the stricken documents will be considered by the court only if and when they are properly submitted in accordance with California law." Maxwell subsequently substituted out as counsel and Starkey proceeded in propria persona.

At the hearing on February 1, 2005, the court denied Starkey's petition to reopen the first accounting and it approved the second and final accounting. The court observed that Starkey had never resubmitted copies of her objections to the second accounting, thus those matters could not be considered.^[2] The court stated, "With respect to the responsibility for Payment of Mortgages on the two Arizona condominiums I find that the Public Guardian has acted responsibly and correctly." On March 2, 2005, the court issued its written order incorporating by reference its tentative rulings.

DISCUSSION

Starkey appeals, in propria persona, from the order of the trial court dated March 2, 2005. She alleges she is entitled to an amount in excess of $80,000 in money damages because respondent improperly diverted monies from the conservatorship estate and collected excessive fees. Starkey also claims respondent placed her mother in care facilities where she received substandard medical care, which contributed to her death. Starkey alleges the existence of a report which "invalidate[s]" the reasons for the restraining order and a "probate police report" exonerating her from claims of financial elder abuse.^[3] Moreover, when respondent acquired a temporary conservatorship, it "forced" her to sign a stipulation relinquishing her rights under the durable powers of attorney. She claims respondent "extorted [the] stipulation from the daughter by threat, to take control of her mother and her estate."

Starkey contends that she was prevented from bringing this evidence before the court and argues that the first accounting should be reopened so she can submit documents to support her claims of financial abuse and physical neglect. She alleges that "[p]leadings regarding financial abuse and damage were continually stricken from the record. Objections to excessive fees and requests to reopen the accountings were stricken from the record. Notices of hearings were not given. Bills were not paid as funds were diverted, and the accounting was impacted by large expenditures, without documentation."

According to Starkey's calculations, the conservatee's estate, the special needs trust and Starkey personally sustained financial damages in excess of $80,000. Starkey argues that the income from the two Arizona condominiums should have been used to fund the conservatee's private home care in that state.

On appeal, our review of the trial court's ruling is strictly limited. We may consider errors of law, but not questions of fact. (9 Witkin, Cal Procedure (4th ed. 1997) Appeal, § 316, p. 354; Tupman v. Haberkern (1929) 208 Cal. 256, 263.) We are not permitted to consider matters outside the record, nor may we accept evidence. (9 Witkin, Cal Procedure (4th ed. 1997) Appeal, § 328, pp. 369-370.) Here, the March 2, 2005 order from which Starkey appeals, addresses procedural defects in her written objections. Thus, we may only decide whether the trial court erred by striking Starkey's written pleadings. We may not consider the content of those pleadings.

Under Code of Civil Procedure section 128.7, subdivision (a), "Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each party shall state the signer's address and telephone number, if any. . . . An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. . . ."

The trial court explained to Starkey how she could cure the defects in her pleadings, and continued the matter to allow her to do so. Despite this opportunity, she did not submit new documents in the format dictated by California law. As a result, Starkey prevented the trial court from ruling on her objections. Her failure to submit procedurally correct documents to the trial court precludes us from considering her arguments concerning the propriety of respondent's actions and the quality of health care provided to the conservatee. In the absence of objections, the trial court properly approved the second and final accounting.

Starkey argues that the first accounting should be re-opened because she did not receive notice of its continuance. She claims that this deprived her of her opportunity to present her objections. We reject this argument because the Probate Code provides, "[i]f a hearing is continued or postponed, no further notice of the continued or postponed hearing is required unless ordered by the court." (Prob. Code, § 1205.) Once Starkey received notice of the first hearing, she was obligated to keep herself informed of subsequent continuances. (Estate of Bell (1943) 58 Cal.App.2d 333, 336.)

Moreover, the first accounting was approved on January 7, 2004 and became final July 6, 2004, when respondent closed the estate. (See Prob. Code, § 2103.) However, Starkey did not appeal the final order and may not do so now. (Estate of Hanley (1943) 23 Cal.2d 120, 122 [order settling the account must be appealed within 60 days from its entry]; Estate of Lindauer (1942) 53 Cal.App.2d 160, 165-166.)

The judgment (order denying petition to re-open the first accounting and approving the second and final accounting) is affirmed. Each party shall bear their own costs.

NOT TO BE PUBLISHED

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

Victoria Starkey, in pro. per., for Appellant.

Stephen Shane Stark, Santa Barbara County Counsel, Jerry F. Czuleger, Senior Deputy, for Respondent.

^[1] The stricken documents were entitled: (1) "Petition to re-open the first accounting," filed November 2, 2004; (2) "Response to the Public Guardians response to the rebuttal filed by Victoria Starkey on September 28, 2004," filed November 2, 2004; and (3) "Amended reply to the Public Guardian's response to claim for payment of private loan note of Elizabeth Kurrus and Objection to 2nd Accounting," filed October 19, 2004.

^[2]The court struck a document served by Starkey on January 12, 2005 entitled, "Amended Reply to the Public Guardian's Response to Claim for Payment of Private Loan Note of Elizabeth Kurrus and Objection to 2nd Accounting." The document was stricken because it was not a duplicate of the document filed on October 19, 2004. (Ante, fn. 2.)

^[3] This document is a report prepared by the Santa Barbara Police Department indicating that there was not "enough evidence to show that funds were taken unlawfully from [the conservatee]." The report stated that, although appellant wrote checks from the conservatee's account and signed her name, the funds were expended for the benefit of the conservatee.