Conservatorship of Mouton

 

 

 

 

 

 

 

 

Filed 11/12/13  Conservatorship of Mouton CA2/4

 

 

 

 

 

 

 

 

 

>NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 

 
>

Conservatorship of the Person and Estate of LOUIS MOUTON, JR.
CRAIG A. SMITH, as Conservator, etc.,             Petitioner and Appellant,             v.   SANDRA N. BALDONADO,             Objector and Respondent.	B241734       (Los Angeles County       Super. Ct. No.  BP115583)

 

          APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Thomas C. Falls, Judge.  Affirmed.

          Keith S. Walker for Petitioner and Appellant.

          Robert L. Kern and Russell A. Dalton,
Jr., for Objector and Respondent.

 

 

 



          In the
underlying action, the probate court appointed respondent Sandra N. Baldonado
under Evidence Code section 730 to evaluate the interests of Louis Mouton, Jr.,
regarding whom appellant Craig A. Smith serves as conservator.  Smith challenges a $4,319.25 fee award to Baldonado.
 We affirm.

 

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

          Smith is a
cousin of Mouton, who retired in 1979 and has no children.  In March 2009, the Public Guardian of the County of Los
Angeles filed a petition to initiate a
conservatorship regarding Mouton.  To
represent Mouton, the probate court appointed attorney James A. Morris, a
member of the Probate Volunteer Panel (PVP).href="#_ftn1" name="_ftnref1" title="">^[1]  Since June 2009, Smith has served as Mouton’s
conservator.  Inventories and appraisals
of Mouton’s belongings and property disclosed assets exceeding $1.5
million.       

          At some point,
Mouton moved from his home to a retirement center in San Dimas, where he
entered into a putative marriage with Roiece Sunny Cooper, who also resided in
the retirement center.  In November 2010,
Smith filed a petition for exclusive authority to give medical consent for
Mouton.  Smith sought, inter alia, the
authority to have Mouton placed in a secured perimeter area of the residential
center, and a determination that Mouton lacked the capacity to enter into a
marriage or registered domestic partnership. 
In support of the petition, Smith submitted a declaration from Dr. Samir
Anabi, who opined that Mouton suffered from dementia, and lacked the ability to
understand the duties and obligations of marriage. 

          On February 23, 2011, at
a hearing on the petition, the probate court granted the petition to the extent
that Smith sought authority over Mouton’s medical care, but deferred its ruling
regarding Mouton’s capacity to marry. 
The court, on its own motion, appointed PVP attorney Baldonado under
Evidence Code section 730 as an expert to evaluate Mouton’s best interests and
report them to the court. 

          On March 28, 2011, Baldonado
submitted her first report to the probate court, stating that she had visited Mouton,
who was then living in a secured perimeter area of the San Dimas retirement
center.  Also present during the visit was
Cooper.  Baldonado stated that she was
unable to discover any reason for Mouton’s placement in the secured perimeter
area, and recommended that he be moved to the regular living facility so that
he and Cooper could see each other “under more pleasant circumstances.”

          In a second
report dated June 7, 2011, Baldonado stated that Mouton had been relocated to a
regular but “dreary” room in the San Dimas residential center.  According to Baldonado, Mouton was unhappy in
the San Dimas residential center, and wanted to return to his home to live
there with Cooper.  Baldonado further
stated that Mouton “would be better served by a conservator . . . who
cares about taking care of him and [does] not make financial decisions that
only benefit the conservator . . . .” 
Regarding the putative marriage, she recommended that a postnuptial
agreement and estate plan “could be negotiated . . . so that
everyone is protected,” and that Mouton and Cooper “should be left to enjoy
each other with what time is left of their lives.”  She also recommended that the probate court
explore the possibility of returning Mouton to his home.

          A hearing was
set for November 21, 2011, to address Mouton’s place of residence and other
matters.  On that date, Baldonado filed
her third report and a declaration supporting her request for a fee award.href="#_ftn2" name="_ftnref2" title="">^[2]  Her
report recommended that Mouton and Cooper be permitted to reside together in
residential unit in Claremont.  Her
declaration requested a fee award of $4,750, stating that she had provided 19
hours of services, at an hourly rate of $250. 
Attached to the declaration was an itemized statement of her services
and the hours allocated to them.  Included in the request was 1.5 hours that she
anticipated for her appearance at the November 21, 2011 hearing.

          The November
21, 2011 hearing involved morning and afternoon sessions.  During the hearing, the court ordered that
Mouton and Cooper be relocated to the residential unit in Claremont.  The court again deferred its ruling regarding Mouton’s
capacity to marry, and set a hearing regarding that matter for March 7, 2012. 

          In addition,
the court addressed Baldonado’s fee request.  In view of the length of the hearing, the
court approved fees of $5,500 for Baldonado reflecting 22 hours of services, including
3 additional hours for her appearance at the hearing, beyond the 1.5 hours that
she had anticipated.  The fees were to be
paid by the conservatorship estate.

          In a report
dated March 6, 2012, Baldonado stated that Mouton’s putative marriage had been
annulled in another action.  She
recommended that the probate court discharge her “as [her] 730 function ha[d]
been completed,” noting that Mouton had been moved to a more appropriate
placement, where he and Cooper were living together.  She requested $4,319.25 in additional fees
and costs, but provided no itemization or other documents to support the
request. 

          At the March
7, 2012 hearing, the probate court relieved Baldonado and took the issue of
Mouton’s capacity to marry under submission.  Regarding Baldonado’s fee request, Smith’s
counsel, Keith S. Walker, asked the court to direct Baldonado to submit a
declaration and documentation “detailing her time,” including the services she
had provided in connection with the prior $5,500 fee award, and to allow him to
respond to it.href="#_ftn3"
name="_ftnref3" title="">^[3]  Baldonado
agreed to provide the specified documentation. 
The court further stated that Walker would be permitted to submit a
responsive declaration, after which the matter would be taken under
submission. 

          On March 16,
2012, Baldonado filed a declaration and supporting documentation limited to her
services on and after November 21, 2011.

The declaration stated that “[f]rom the date of November 21,
2012 [sic],” she had provided
approximately 17 hours of services at an hourly rate of $250, resulting in outstanding
fees totaling $4,319.25.  Accompanying
the declaration was an itemization reflecting hours of service on and after
November 21, 2011, including four hours related to the November 21, 2011
hearing (1.5 hours for a meeting with Mouton and 2.5 hours for the afternoon
session).    

Walker filed responsive declaration
on March 23, 2012, asserting that Baldonado failed to provide a full
itemization supporting her fee requests. 
Referring to the court’s order of November 21, 2011 allowing Baldonado
$5,500 in fees for her services up to that time, Walker again erroneously asserted
that “[n]o written declaration or billing records were submitted with respect
to that award . . . .” 
Noting that Baldonado requested four hours for the November 21 hearing,
Walker further stated that he “assumed that that time was included in the 22
hours for which Ms. Baldonado was allowed compensation at the conclusion of the
November 21 hearing, but that cannot be determined without all of Ms. Baldonado’s
billing records.”  He also challenged
other items, arguing that Baldonado had allocated an excessive amount of time
to certain services and provided services outside the scope of her appointment.  He stated: 
“In light of the foregoing, I am not opposed, if the Court sees fit to
do so, to vacating the order submitting the matter of Ms. Baldonado’s fees . . . ,
in order to give her an opportunity to respond to these concerns.” 

          The court did
not vacate its order regarding the resolution of Baldonado’s fee request or
request additional evidence from her.  On
March 29, 2012, it issued a minute order stating:  â€œ730 Evaluator fees are approved in the amount
of $4,319.25.”href="#_ftn4"
name="_ftnref4" title="">^[4]  The order also determined that Mouton lacked
the capacity to marry, but permitted him to cohabit with anyone he wished.  On June 1, 2012, Smith noticed his appeal from
the March 29, 2012 minute order.  Later,
on June 8, 2012, the probate court issued a written order reflecting the
rulings in the March 29, 2012 minute order. 


 

>DISCUSSION

          On
appeal, Smith challenges only the $4,319.25 fee award.  As explained below, we reject his
contentions.href="#_ftn5" name="_ftnref5"
title="">^[5]

 

A.  
Governing
Principles
 

          Baldonado was appointed under
Evidence Code section 730, which provides: 
“When it appears to the court, at any time before or during the trial of
an action, that expert evidence is or may be required by the court or by any
party to the action, the court on its own motion . . . may
appoint one or more experts to investigate, to render a report as may be
ordered by the court, and to testify as an expert at the trial of the action
relative to the fact or matter as to which the expert evidence is or may be
required.  The court may fix the
compensation for these services, if any, rendered by any person appointed under
this section, in addition to any service as a witness, at the amount as seems
reasonable to the court.”  In civil
actions, the payment of that compensation is “apportioned and charged to the
several parties in a proportion as the court may determine.”  (Evid. Code, § 731, subd. (c).)

          In view of these provisions, a trial
court must (1) decide whether an appointed expert should receive any
compensation for his or her services, (2) determine a reasonable amount of
compensation and (3) state which party or parties will bear what portion of the
fees and costs.name="SDU_455">  (In re
Marriage of Laurenti  (2007) 154
Cal.App.4th 395, 403.)  With respect to
item (2), to determine reasonable compensation, the court must “review the [expert’s]
bill and give some consideration to the value of the services provided.”  (Id.
at p. 404.)  The court’s determinations
regarding these matters are reviewed for an abuse of discretion.  (Dodge
v. San Diego Electric Ry. Co. (1949) 92 Cal.App.2d 759, 769 [interpreting
predecessor statute].)

 

B.   
 >Smith Has Not Shown That the Probate Court
Disregarded Walker’s Declaration

          Smith contends
the probate court approved Baldonado’s fee request without reading and considering
Walker’s March 23, 2012 declaration opposing the request.  In support of this contention, Smith observes
that Walker’s declaration raised several challenges to the request, yet the probate
court’s ruling was silent regarding the reasons for its decision.  As explained below, that silence mandates the
rejection of Smith’s contention.

          Under Evidence Code section 664, a court is
presumed to have done its duty, absent proof to the contrary (>Newman v. Los Angeles Transit Lines
(1953) 120 Cal.App.2d 685, 691).href="#_ftn6" name="_ftnref6" title="">^[6]  Thus, when a statute
does not require express findings and the trial court makes none in ruling pursuant
to the statute, a reviewing court will presume that the court “‘was aware of
and followed the applicable law’” (People
v. Stowell (2003) 31 Cal.4th 1107, 1114-1115, quoting People v. Mosley (1997) 53 Cal.App.4th 489, 496-497; >Thompson v. Thames (1997) 57 Cal.App.4th
1296, 1308.)  The effect of this
rebuttable presumption is “to impose upon the party against whom it operates
the burden of proof as to the nonexistence of the presumed fact.”  (Gee v. California State Personnel Bd.
(1970) 5 Cal.App.3d 713, 718.)

          Here, Evidence Code section 730
imposes no duty on a court to state that it examined all declarations submitted
in connection with a fee award, and Smith requested no such statement.  Under these circumstances, we will presume
that the probate court read and considered the declarations submitted in
connection with the fee request, absent evidence to the contrary.  (People
v. Stowell, supra, 31 Cal.4th at pp. 1114-1115.)  Because the record contains no such evidence,
Smith’s contention fails.  (>Ibid.)

 

C.  
 >There Was an Adequate Basis For the Court’s Ruling

          In an effort
to show that the probate court abused its discretion in approving the fee
award, Smith argues that Baldonado’s showing in support of her requested fee
was defective.  Generally, “[d]iscretion is abused whenever,
in its exercise, the court exceeds the bounds of reason, all of the
circumstances before it being considered.”  (Denham v. Superior Court (1970) 2
Cal.3d 557, 566.)  Smith’s
principal contention is that Baldonado sought fees for services outside the
scope of her appointment.  In addition,
he appears to suggest that she sought duplicative fees, “padd[ed]” her request,
and relied on inconsistent time records. 
For the reasons discussed below, his contentions fail.

On appeal, an order is presumed to be correct when the
record is silent regarding the court’s reasons for its decision.  (Corenevsky
v. Superior Court (1984) 36 Cal.3d 307, 321; Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956; In re Marriage of
Aninger (1990) 220 Cal.App.3d 230, 238.) 
Because we review the ruling, rather than the trial court’s reasons, we
will affirm an order “‘if it is correct on any theory apparent from the
record.’”  (Wal-Mart Real Estate Business Trust v. City Council of City of San
Marcos (2005) 132 Cal.App.4th 614, 625, quoting Blue Chip
Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d
706, 712.)  Thus, when the court made no
express findings in approving a discretionary fee award, we infer all findings
necessary to support the award and then examine the record for the existence of
substantial evidence.  (>Finney v. Gomez (2003) 111
Cal.App.4th 527, 545.)  In this regard,
“the power of an appellate court begins and ends with the determination as to
whether, on the entire record, there is substantial evidence, contradicted
or uncontradicted, which will support the determination [of the trier of
fact].”  (Bowers v. Bernards (1984)
150 Cal.App.3d 870, 873-874, emphasis omitted.)

          Here, the record discloses an adequate
evidentiary basis for the $4,319.25 fee award.  On March 15,
2012, Baldonado submitted a declaration in support of her request for fees in
that amount and an itemization of her hours.  Under the principles discussed above, her
showing was sufficient to support the award.

          Smith contends that Baldonado’s
evidentiary showing in support of her fee request was insufficient under rule
4.127(b)(1) of the Los Angeles County Superior Court Rules, which governs the
compensation of PVP attorneys appointed as legal counsel to represent
conservatees.  (See Los Angeles County
Superior Court Rules, rule 4.126 [“PVP Attorney appointments are personal and
cannot be delegated to other attorneys. 
Only the PVP attorney appointed by the court may render legal services
to the client and appear at hearings.”].) 
However, that rule is inapplicable here, as Baldonado was appointed as
an expert under Evidence Code section 730.  That provision affords a court authority only
“to appoint one or more experts to investigate, to render a report as may be
ordered by the court, and to testify as an expert,” but not to serve as legal
counsel for a party to a proceeding.  Accordingly,
notwithstanding the probate court’s occasional references to Baldonado as “730
counsel” for Mouton, she did not act as his legal representative.href="#_ftn7" name="_ftnref7" title="">^[7]     


          In an apparent effort to discredit Baldonado’s
showing on appeal, Smith asserts that Walker’s March 23, 2012 declaration raised “serious questions” regarding
Baldonado’s showing.  As explained
below, Walker’s declaration establishes no abuse of discretion by the probate
court. 

 

1.    
Baldonado
Requested  No Fees Beyond the Scope of the
Appointment

Relying on Walker’s declaration,
Smith maintains that Baldonado requested fees for services beyond the scope of
her appointment.  Walker’s declaration
stated that Baldonado had improperly requested compensation for .35 hours spent
in conversation with one of Mouton’s friends regarding the purchase of
furniture for Mouton and Cooper, and that she had violated her duty of
confidentiality to Mouton by speaking with Cooper.  We reject this contention.

The record establishes that the
probate court did not appoint Baldonado to serve as Mouton’s legal counsel, but
instead relied on her to provide information regarding a broad range of issues
related to Mouton’s welfare.  On June 8,
2011, at a hearing on Mouton’s capacity to marry and other matters, Walker
asked the probate court whether Mouton had two attorneys, Morris and Baldonado.  The court replied that Baldonado had been
appointed to represent Mouton’s best interest “to the court [under section]
730” regarding several matters, including housing, medications, and marriage.  Baldonado’s appointment thus encompassed
meetings with Mouton’s friend and Cooper to discuss issues such as furniture
and the putative marriage.  Furthermore,
because Baldonado was not appointed to provide legal services to Mouton, her
contact with Cooper violated no duty of confidentiality.  (See 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 90,
pp. 125-127 [attorney’s duty of confidential arises from attorney-client
relationship carrying fiduciary obligations].)  Accordingly, the probate court, in
approving the $4,319.25 fee award, did not err in concluding that Baldonado
sought no compensation for services beyond the scope of her appointment.

 

2.    
 >Baldonado Sought No Duplicative Fee Award

To the extent Smith suggests on
appeal that Baldonado sought duplicative fees, we conclude that the probate
court had an adequate basis to reject that challenge, as presented in Walker’s declaration.  Walker’s declaration asserted that Baldonado’s
$4,319.25 fee request might include services for which Baldonado had been
awarded compensation at the November 21, 2011 hearing, when the probate court approved
$5,500 in fees.  In support of this
contention, Walker stated that Baldonado had never provided documentation to
support the $5,500 fee award.  Walker
further stated that Baldonado’s March 15, 2012 declaration in support of the
$4,319.25 fee request appeared to seek compensation for 4.0 hours of services related
to the November 21, 2011 hearing, in addition to the 4.5 hours related to that
hearing that the probate court had incorporated in the $5,500 award.

We conclude that Walker’s
declaration does not establish that the probate court erroneously awarded
duplicative fees.  Generally, when the evidence underlying an order consists
of conflicting declarations, the rule applicable to our review “is the same as
that governing oral name="citeas((Cite_as:_224_Cal.App.2d_426,_*43">testimony, namely, that it
is primarily for the lower court to determine the credibility of [declarants]
and the weight of their averments, and its determination is rarely disturbed on
appeal.”  (Hammel v. Lindner (1964) 224 Cal.App.2d 426, 431-432.)  No circumstance is presented warranting
departure from that rule.

To begin, we observe that contrary
to Walker’s declaration, Baldonado had submitted documentation to support the
$5,500 fee award.  On November 21, 2011, Baldonado
filed a declaration and supporting itemization requesting compensation for 19
hours of services, including an anticipated 1.5 hours for the hearing on that
date.  Later, during the November 21,
2011 hearing, the probate court awarded her $5,500, which included fees for an
additional 3 hours incurred in connection with the hearing, based on the court’s
observation of the proceedings. 

We recognize that Baldonado’s March 15, 2012 declaration
provided no documentation regarding the $5,500 fee award, despite her agreement
to provide such documentation. 
Nonetheless, her November 21, 2011 declaration and supporting
itemization had previously been submitted when the court approved the first fee
request (which Smith does not challenge). 
Thus, when the court later approved the $4,319.25 fee award, it
had before it both Baldonado’s November 21, 2011 and March 23, 2012
declarations, along with their supporting documentation.  In addition, Walker had submitted his own declaration
describing the compensation Baldonado had already been awarded in connection
with the November 21, 2011 hearing. 
Viewed collectively, this evidence establishes that the probate court
had notice of any potentially duplicative request, and also supports a finding
that Baldonado provided a total of 8.5 hours of services on November 21,
2011.  Accordingly, Walker’s declaration is
insufficient to establish that Baldonado obtained duplicative fees.

 

3.    
 Baldonado
Requested No Excessive Fees  

To
the extent Smith also suggests on appeal that Baldonado’s fee request
included “padded” items and relied on “inconsistencies” in time records, his contention
fails for similar reasons.  Regarding this
contention, Walker’s declaration identified several services that he opined
could have been provided in less time or were unnecessary.  In addition, he noted that Baldonado’s time
records for certain communications with him and other activities were
inconsistent with his own time records.  However,
under the principles
governing our review, Walker’s declaration does not establish error, as we
defer to the probate court’s resolution of conflicts in the parties’ showings.  In sum, Smith has shown no abuse of discretion
in the probate court’s determination of the amount of the fee award.

 

D.    Smith
Made No Request For an Evidentiary
Hearing        

Smith
contends the trial court denied him due process by failing to conduct an
evidentiary hearing on the $4,319.25 fee request.  Generally,
declarations may be employed in the resolution of contested probate matters
when the parties do not object to their use and adopt that means of supporting
their positions.  (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309.)  We conclude that Smith has failed to preserve
his contention for appeal, as he never asked for an evidentiary hearing, and
his counsel expressly requested the procedure that the probate court
implemented to resolve the fee request.  


Generally, an appellant forfeits the right to attack error by
expressly or impliedly agreeing at trial to the ruling or procedure objected to
on appeal.  (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d
158, 166.)  Here, the probate court
adopted the procedure that Walker proposed for resolving the fee request,
namely, it directed Baldonado to provide a declaration and supporting
documentation, and permitted Walker to submit a responsive declaration.  Although Walker’s declaration identified purported
deficiencies in Baldonado’s showing, he requested no evidentiary hearing.  Rather, he stated:  “In light of the foregoing, I am
not opposed, if the Court sees fit to do
so, to vacating the order submitting the matter of Ms. Baldonado’s fees . . . ,
in order to give her an opportunity to respond to these concerns.”  (Italics added.)  For the reasons discussed above (see pt. C., >ante), the probate court was not obliged
to request further evidence, as there was already an adequate showing to
support the fee award.  Thus, the court,
in approving the award, employed the precise procedure that Walker proposed.  In sum, Smith has forfeited his contention of
error.href="#_ftn8" name="_ftnref8"
title="">^[8]  

>DISPOSITION

The order approving the $4,319.25 fee award is affirmed.  Baldonado is awarded her costs on appeal.

            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                   MANELLA,
J.

 

We
concur:

 

 

 

 

EPSTEIN,
P. J.

 

 

 

 

WILLHITE,
J.