Conservatorship of Fisher

Filed 2/22/07  Conservatorship of Fisher CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Thomas H. Cahraman, Judge.  Affirmed.

            The Neshanian Law Firm and Eric M. Neshanian for Objector and Appellant.

            Joe S. Rank, County Counsel, and Robert M. Pepper, Principal Deputy County Counsel, for Petitioner and Respondent.

1.  Introduction^[1]

            Claris Fisher, the wife of conservatee, Meyer Fisher,^[2] appeals from a probate order settling the second account current filed by the Riverside County Public Guardian, acting as the successor permanent conservator for Meyer.  (§§ 1300, subds. (b) and (f), and 1301, subds. (c) and (e).)  Claris is being represented by her son, a lawyer, Eric Neshanian.  Riverside County Counsel represents the public guardian.  The main point of contention on appeal is whether the public guardian failed to list two notes for the sale of a business called Color Lab as the major asset of Meyer's estate.

            We deny Claris's request for judicial notice of items four through 14, composed of various newspaper and magazine articles.  (Evid. Code, §§ 452, subd. (h), and 459; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

            We hold the trial court did not err in denying Claris's motion for a directed verdict or in approving the second account current.

2.  Factual and Procedural Background

            The probate court first appointed a conservator for Meyer Fisher in 1992.  The conservatorship has continued since that date.  In 1997, Claris was appointed conservator of Meyer's estate and person.  In August 2001, the public guardian was appointed as successor permanent conservator.

            In October 2004, the public guardian filed the second account current and a petition for hearing.  (§ 2620, subd. (a).)  The public guardian reported that David Stanton, the obligee on the Color Lab notes, claimed he had overpaid and refused to make any more payments after June 2004.

            Claris filed objections to the second account current.  (§ 2622.)  As to the Color Lab notes, Claris maintains the two notes were each for $272,500, a total of $545,000, and that each note should be paid monthly in the amount of $2,384.01 through 2015.  Claris also asked the court to issue an order to show cause regarding Laura Dewey's legal representation of Meyers.^[3]

            A major dispute exists regarding what, if any, balance is owing to Meyer on the Color Lab notes.  Claris accuses the public guardian of not investigating and pursuing the Color Lab asset.  She contends that, based on an amortization schedule prepared in 1995, the principal balance in July 2006 was $340,596.14.  The public guardian claims it cannot obtain an accurate balance on the notes, that Stanton, the obligee, maintains the notes have been fully paid, and that Meyer's estate, the county, or the court lack funds to pursue investigation and litigation on the notes.

            At a continued hearing in January 2005, the court, retired Judge Selim Franklin presiding, on its own motion ordered the appointment of a referee to investigate the assets of Meyer's estate, particularly the sale of Color Lab.

            In February 2005, the court, the Honorable Stephen D. Cunnison presiding, set a review hearing to discuss payment of referee fees.  At that hearing, on March 7, 2005, the court denied and struck the peremptory challenge filed by Claris.  The court ruled there were no funds to pay a referee in the estate or available from the county or the court and struck Franklin's order appointing the referee.

            In December 2005, the court conducted the contested hearing on Claris's objections to the second account current.  The court denied her oral motion for a directed verdict.  Claris objected that the second account current omitted listing the Color Lab asset.

            The deputy public guardian testified that the Color Lab asset was not included because neither Claris nor Stanton would provide information about the balance due on the notes and there was no money available to pursue the asset.

            On December 22, 2005, the court made the order settling the second account current, which is the order from which Claris appeals.

3.  Discussion

            The thrust of Claris's argument is the probate court erred by placing the burden of proof on her to justify her objections rather than on the public guardian to justify its accounting, citing In re Guardianship of Cookingham (1955) 45 Cal.2d 367, 375, and In re Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388 (Hume II).  Additionally, Claris maintains the public guardian should be compelled to investigate the Color Lab asset and to include it in the second account current.  (Clark v. State Bar (1952) 39 Cal.2d 161, 173-174; In re Conservatorship of Estate of Hume (2006) 139 Cal.App.4th 393, 399 (Hume I).)

            Our analysis begins with the premise that the judgment is presumed to be correct unless error is affirmatively shown.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Hume II, supra, 140 Cal.App.4th at p. 1393.)  As stated in Cookingham:  â€