Conservatorship of Auhkbar

Filed 2/28/07 Conservatorship of Auhkbar CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

This case stems from a petition filed by the San Mateo County Public Guardian (San Mateo County) in which it sought to compel the appointment of the Alameda County Public Guardian (Alameda County) as the conservator of the person and estate of Raeven Auhkbar.[1] Concluding that San Mateo County had not carried its burden of proving that Mr. Auhkbar was domiciled in Alameda County, the trial court dismissed the petition. On appeal, San Mateo County contends that in doing so, the trial court failed to apply the proper legal standard and abused its discretion in relying on Mr. Auhkbars testimony, which it deems not credible because it was confused, unintelligible and non-responsive.

We conclude that the trial courts determination concerning Mr. Auhkbars place of domicile was supported by substantial evidence, and that the trial court did not abuse its discretion in dismissing the petition. Accordingly, we affirm.

I. Factual and Procedural Background

On February 15, 2005, San Mateo County filed a petition for appointment of a probate conservator for the person and estate of Raeven Auhkbar, then a thirty‑three‑year-old male whom the county alleged was unable to provide for personal needs for physical health, food, clothing, or shelter due to lack of insight and judgment. As Drs. Michael Ghaly and Brendan Scherer opined in the petitions supporting capacity declaration and attachments, Mr. Auhkbar suffered from memory impairments, behavioral disinhibitaion [sic], extreme impairment of executive functions, inability to care for self in community as the result of a 1994 incident in which he suffered a severe brain injury due to a gunshot wound to the head. Dr. Ghaly explained that as a result of his physical disabilities and behavioral issues, Mr. Auhkbar has repeatedly been hospitalized in both Alameda and San Mateo Counties, with his most recent hospitalization commencing on December 3, 2004 at San Mateo Medical Center. He remained hospitalized in San Mateo County at the time of the hearing on San Mateos petition.

The petition filed by San Mateo County was unorthodox, however, in that it was filed not in San Mateo County and did not seek to have its own public guardian appointed at the conservator for Mr. Auhkbar. Rather, it was filed in Alameda County and sought to force the appointment of the Alameda County Public Guardian as the conservator. The petition listed Auhkbars present address as San Mateo Medical Center, but identified his county of residence as Alameda.

On March 30, 2005, Alameda County objected to San Mateo Countys petition, contending, as is pertinent here, that the appropriate venue for a conservatorship is where the conservatee is domiciled and that San Mateo had failed to establish Alameda County as Mr. Auhkbars county of domicile.

On April 6, 2005, in response to Alameda Countys objection, San Mateo County filed the declaration of Linda J. Eoff, a deputy public guardian for San Mateo County, in which Ms. Eoff purported to set forth Mr. Auhkbars connections to Alameda County.

The petition came on for hearing on June 15 and 21, 2005 before the Honorable Marshall I. Whitley. Testimony was presented by two witnesses, Verna Walters, Mr. Auhkbars mother, and Mr. Auhkbar himself. The testimony of both witnesses, as recognized by the trial court, lacked clarity and was, at times, difficult to follow. With that in mind, we summarize as best as we can understand the pertinent testimony.

Ms. Walters testified first and explained that Mr. Auhkbars birth name was Ronald Johnson, but after the shooting accident, he changed his named to Raeven Auhkbar. The accident occurred in 1994, when he was standing on a corner in San Mateo, where he was living with his grandmother. Immediately following the accident, he was first hospitalized at Mills Hospital and then at Crystal Springs Rehabilitation Center, both in San Mateo County. He left Crystal Springs before being discharged and stayed with his mother for several months at her home in Newark in Alameda County, where she has lived for the past 20 years. He then left her house and went to Atlanta, where he lived for what Ms. Walters estimated to be two‑to‑three years.

After Mr. Auhkbar returned from Atlanta, he again lived with his mother in Newark and stayed for what she called a very long time. Ms. Walters testified that Mr. Auhkbar has his own bedroom at her house, he has some clothes stored there, his mail comes to her house, and he sometimes pays rent to stay there. To her knowledge, he has no residence other than her home and does not pay rent or utilities anywhere else.

As a result of his brain injury, Mr. Auhkbar suffers from seizures and other physical and mental ailments and has frequently been hospitalized, both in Alameda and San Mateo Counties. Each time he is discharged, Ms. Walters is called to pick him up, and she brings him to her home because he has no other place to go. Occasionally, upon leaving the hospital, he has gone to San Mateo County, where, according to his mother, he might stay for a week. But it wasnt the majority of the time . . . . She estimated that he went to San Mateo [n]ot more than ten times after leaving the hospital. According to Walters, since Mr. Auhkbars return from Atlanta, he has been with her most of the time, or more than 75 percent of the time.

Ms. Walters also testified that Mr. Auhkbar would leave her house and go to San Mateo to pick up his monthly Medi-Cal check. She explained: It was like, whenever he knew his check was coming, he would get ready, and he would leave, he would take a cab, and he would go to San Mateo . . . . She estimated he did this about three or four times. And then he would always come back . . . . Ms. Walters could not say how long he would stay away, but she did not think he ever stayed away longer than a month.

When asked about Mr. Auhkbars whereabouts for the two years preceding the hearing, Ms. Walters testified that he had resided with her off and on . . . . For the year of 2004, he stayed with her most of the time. She was unable to estimate the longest period Mr. Auhkbar lived with her that year, although she described it as a very long time . . . . To Ms. Walters knowledge, he had not, in the two years prior to the hearing, lived with his aunt in San Mateo County. She was unaware that Mr. Auhkbars Medi-Cal check started going to his aunts house in San Mateo County in August 2004. According to Ms. Walters, his aunt did not want his mail going to her house.

At the time of the hearing, Mr. Auhkbar was hospitalized at San Mateo Medical Center, where he ends up off and on. According to Ms. Walters, prior to that hospitalization, he had been staying at her house, but he had become very combative one evening and his sister called the police. Because his Medi-Cal registration lists an address in San Mateo County, the police took him to San Mateo Medical Center. Despite her testimony that he lives with her off and on, Ms. Walters acknowledged that Mr. Auhkbar is no longer welcome to live with her because he needs help that she is ill‑equipped to provide.

Ms. Walters acknowledged on cross-examination that she believes Alameda County should be assisting her son since he has been here in this county and [t]hey havent done anything for him . . . . She has attempted to get help from numerous facilities in Alameda County, but those placements have been unsuccessful.

Mr. Auhkbar, who acknowledged that he suffers from short- and long-term memory loss, then testified. Like his mother, he detailed his whereabouts over the past years, but he described greater contacts with San Mateo County than did his mother. He explained that after his mother moved to Newark and while his grandmother was alive, he lived at his aunts house in San Mateo with his aunt and grandmother. And for about one and a half years prior to his 1994 accident, he lingered, or was homeless, in San Mateo.

Mr. Auhkbar testified that after his accident, he was hospitalized at Crystal Springs Rehabilitation Center for approximately two years. Following that, he moved in with a girlfriendwhom he called Mary Full of Lovein Hayward. Between the time he left Crystal Springs and went to Atlanta, he also lived with his mother for perhaps more than two years. He estimated his stay in Atlanta to have been [a]bout five years. He was uncertain how long ago he had returned to California, testifying at one point that he had been back for two years and at another point claiming it had been three years.

Following his return from Atlanta, Mr. Auhkbar lived with his mother from time to time, for [a]bout four and a half months, and paid rent during that time. Consistent with Ms. Walters testimony, he also testified that during the time he lived with his mother, he would leave her house for San Mateo County when his check came. When asked to estimate how many times he would leave his mothers house for San Mateo to get his check, he responded, Im going to say hella times. That means a lot. Under further questioning, he estimated it to have been more than five times, almost all the time.

Mr. Auhkbar testified that he has considered himself to be homeless for the last three and a half years. He unambiguously stated, however, that at the time of the hearing, he considered San Mateo County to be his home.

The parties also introduced four exhibits relating to the Medi-Cal benefits received by Mr. Auhkbar. The records reflected that from June 2003 through July 2004, Mr. Auhkbar was receiving his benefits at an address in Alameda County. From August 2004 through the time of the hearing, he was receiving them at an address in San Mateo County. No other evidence was admitted at the hearing, so the sum total of the evidence before Judge Whitley consisted of the testimony of Ms. Walters and Mr. Auhkbar and the four Medi-Cal records. [2]

At the conclusion of the hearing, Judge Whitley stated that he was not persuaded one way or the other as to Mr. Auhkbars county of domicile. He explained: he [c]ertainly has substantial contacts in San Mateo County. Existed for some time. His contacts with Alameda County have been maybe 15, 20 years, beenmay go back to when his mother might have moved here, and its been off and on. It does seem that he bounces back here. She is here. . . . He takes his check, and he goes back to San Mateo County to linger, whatever else. [] While hes been on this side, hes also taken on other places. Hes gone to Sacramento. Hes gone to Georgia. But the question is, you know, what is this one place that is his domicile, his place that he considers his one and only home. I dont believe youI really dont believe you need a physical house or car or trailer or anything that you can go live in. I think you can have a place. [] I agree with Mr. Goltz [counsel for San Mateo] that he didnt really define that place in San Mateo County. But by the same token, hes not really welcome in the only place that he has in Alameda County, which is his mothers home. She doesnt expect him to come back. She doesnt want him to come back. So there just seems to be this ambivalence as it relates to his domicile, which is at best, in my mind, gray. [] And for me to pick one over the other based on the evidence I have, the testimony of the two witnesses and A, B, and one and two exhibits, which even, even those exhibits were equivocal. . . . [] Soitsthe evidence continues to be this toss-up. So Im certainly not persuaded that its Alameda County. Am I persuaded that its San Mateo County? Well, I dont think that the petitioner came in here to prove that its San Mateo County. I think I do have some evidence that its San Mateo County. But based on that evidence, am I persuaded its San Mateo County at this point? No. Judge Whitley then concluded: So given that, that I find that theres been a failure to satisfy the burden of proof required; that is, to persuade the Court by a preponderance of the evidence that Alameda County is the county of domicile for this proposed conservatee, and so based on the failure to carry that burden, Ill have to dismiss the petition.

San Mateo filed a timely notice of appeal.

II. Analysis

A.      Standard of Review

Before addressing the merits of San Mateo Countys appeal, we first consider the dispute between the parties as to the applicable standard of review. And we begin by noting that it is difficult to ascertain exactly what standard of review San Mateo is advocating. Although it initially appears that San Mateo County is urging us to review Judge Whitleys decision de novo, claiming the issue on appeal is a question of law, in the following sentence, the county states that [t]he trial court abused its discretion when it failed to apply the correct legal standard for the determination of residence. Two paragraphs later, it again argues that the trial court abused its discretion when it relied on evidence completely lacking credibility. And then even later, the county argues that the trial court applied the incorrect legal standard by purportedly disregarding the applicable rules governing residence determination, relying instead on the incredible testimony of Mr. Auhkbar, which constituted an abuse of discretion.

On the other hand, Alameda Countys position is clear. It urges us to review Judge Whitleys decision dismissing the petition for an abuse of discretion and to review his factual determinations regarding Mr. Auhkbars domicile for substantial evidence.

We do not view this appeal as presenting a question of law because the essence of San Mateo Countys argument is not, as San Mateo County states, that the trial court failed to apply the controlling law, but rather that it reached the wrong conclusion when it applied the law. That being said, we agree with Alameda County that Judge Whitleys dismissal of the petition is to be reviewed for an abuse of discretion and his factual determinations are binding unless unsupported by substantial evidence. (See In re Marriage of Leff(1972) 25 Cal.App.3d 630, 640-641 [the reviewing courts task begins and ends with a determination as to whether there is any substantial evidence in the record to support the trial courts finding on the issue of domicile].)

B. The Applicable Statute And Meaning Of Domicile

As is pertinent here, Probate Code section 2920 provides: If any person domiciled in the county requires a guardian or conservator and there is no one else who is qualified and willing to act and whose appointment as guardian or conservator would be in the best interest of the person . . . . :  [] (1) The public guardian shall apply for appointment as guardian or conservator of the person, the estate, or the person and estate . . . .[3] While Probate Code section 2920 clearly speaks in terms of the proposed conservatees domicile, San Mateo County submits, There is no dispute that venue for the establishment of a conservatorship is proper in the county in which the person resides or is domiciled, when the petition is brought by the Public Guardian. (Probate Code Sections 2201[, subdivision] (a)^[[4]]and 2920[, subdivision] (a). Citing Estate of Glassford (1952) 114 Cal.App.2d 181, San Mateo County then claims that [f]or purposes of establishing a conservatorship, the terms residence and domicile are interchangeable. San Mateo County advocated the same test at the hearing, claiming that the test is, is Mr. Auhkbar a resident of Alameda County and that domicile is synonymous with residence for the purposes of this issue. This position is incorrect, as Probate Code section 2920 uses the term domicile, and the terms domicile and residence have distinct meanings.

In Smith v. Smith (1955) 45 Cal.2d 235, 239, the seminal case on the meaning of the terms domicile and residence, our Supreme Court explained the distinction: Courts and legal writers usually distinguish domicile and residence, so that domicile is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively; whereas residence connotes any factual place of abode of some permanency, more than a mere temporary sojourn. Domicile normally is the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time. (See also 2 Witkin Cal. Procedure (2006 supp.) Jurisdiction,  151A, p. 272 [The domicile of a person is ordinarily the place where the person permanently resides, and the test is the intention to make that place his or her home.]; id, 151C, p. 276 [The element of intention to make a place his or her home is essential to a persons domicile.]; In re Marriage of Leff (1972) 25 CalApp.3d 630, 642 [where there are two residences, determination of issue of domicile depends on persons intent as manifested by acts and declarations].)

C. The Trial Court Did Not Err In Dismissing The Petition

With these legal standards in mind, we turn to the evidence presented at the contested hearing to determine whether Judge Whitleys conclusion that San Mateo County had not established Alameda County to be Auhkbars domicile was supported by substantial evidence. And we conclude that it was.

The evidence presented at the hearing portrayed Mr. Auhkbars life as a transient one in which he has spent time going back and forth between Alameda County, where his mother lives, and San Mateo County, which Mr. Auhkbar considers his home. In terms of Alameda County, Mr. Auhkbar has in the past spent time at his mothers house, usually upon discharge from his numerous hospitalizations for lack of anywhere else to go. Ms. Walters testified, however, that he is no longer welcome in her home. In terms of San Mateo County, Mr. Auhkbar lived there before his accident, goes there to retrieve his Medi-Cal checks and linger, and often goes there upon release from the hospital. And with regards to a factor that is essential to a persons domicile, Mr. Auhkbar considers San Mateo County his home. In addition to this conflicting testimonial evidence, the documentary evidence was also equivocal, with Exhibits 1 and 2 showing Alameda County as Mr. Auhkbars county of Medi-Cal registration from June 2003 to July 2004, and Exhibits A and B showing San Mateo County as his county of registration from August 2004 through the date of the hearing. In light of this conflicting evidence, we conclude there was substantial evidence supporting Judge Whitleys determination that San Mateo County failed to satisfy its burden of establishing that Mr. Auhkbar is domiciled in Alameda County. And since Probate Code section 2920 authorizes the filing of a petition for appointment of a public guardian only in the county where the proposed conservatee is domiciled, Judge Whitley did not abuse his discretion in dismissing the petition.

San Mateo County disputes this conclusion for two reasons, both of which we reject. First, it argues that the trial court applied the incorrect legal standard by failing to apply the criteria set forth in Government Code section 244 for determining ones place of residence. Government Code section 244 provides, In determining the place of residence the following rules shall be observed: [] (a) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose. [] (b) There can only be one residence. [] (c) A residence cannot be lost until another is gained. [] (d) The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child. [] (e) The residence of an unmarried minor who has a parent living cannot be changed by his or her own act. [] (f) The residence can be changed only by the union of act and intent.  [] (g) A married person shall have the right to retain his or her legal residence in the State of California notwithstanding the legal residence or domicile of his or her spouse.

We note that while that section speaks in terms of residence, rather than domicile, it has been recognized that the rules set forth in Government Code section 244 actually define ones domicile. (Lowe v. Ruhlman (1945) 67 Cal.App.2d 828, 833 [Government Code sections 243 and 244 define the concept of domicile rather than the concept of residence].) These rules are therefore relevant to Judge Whitleys determination, although they are not the exclusive criteria for determining domicile as indicated by Smiths explanation on what constitutes a domicile. (Smith, supra, 45 Cal.2d at p. 239.) And while San Mateo County contends that the trial court failed to apply these rules, we do not see Judge Whitleys decision as inconsistent with these rules.

Specifically, San Mateo County contends that the place Mr. Auhkbar remains when not called elsewhere is his mothers house in Alameda County as provided in Government Code section 244, subdivision (a). However, the evidence did not conclusively establish Alameda County as the place Mr. Auhkbar remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose. (Ibid.) Indeed, both Ms. Walters and Mr. Auhkbar provided testimony suggesting that Mr. Auhkbar returns to San Mateo County when not called elsewhere. And the other rules set forth in Government Code section 244 are of no greater assistance to San Mateo County.

Additionally, San Mateo County contends that [t]he court abused its discretion in giving Mr. Auhkbars testimony any weight in light of Mr. Auhkbars clearly documented cognitive impairment and memory loss. In support of this argument, San Mateo asserts, The Capacity Declaration filed with the Petition for Appointment, clearly documents Mr. Auhkbars impaired mental status. Mr. Auhkbars testimony was, at various times confused, unintelligible and non-responsive. The nature of his testimony was consistent with the findings of Drs. Ghaly and Scherer as reported on the Judicial Council Form and filed with the court. (Citations omitted.) As noted above, the petition and supporting documents were not admitted into evidence at the hearing and were therefore not available for the trial courts consideration. Thus, Mr. Auhkbars impaired mental status was not clearly documented, as San Mateo would have it.

To be sure, Mr. Auhkbars testimony at times lacked clarity, but for that matter, so did that of his mothers. As to Mr. Auhkbars testimony, Judge Whitley observed, I think he was, in fact, in some respects, clearer than his mom, in some respects. And it is well established that the assessment of a witnesss credibility is the exclusive province of the trier of fact. (Estate of Pelton (1956) 140 Cal.App.2d 512, 516.) San Mateo quotes Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877 for the proposition that [t]he trier of facts determination will be interfered with on appeal only when it appears that the witnesss testimony is inherently so improbable as to be unworthy of belief. While that may be a correct iteration of the law, it was not the case here that . . . Mr. Auhkbars testimony was so implausible that the trial courts reliance on his testimony constituted an abuse of discretion, as San Mateo submits.

III. Disposition

The order dismissing San Mateo Countys petition for appointment of conservator is affirmed.

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Richman, J.

We concur:

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Haerle, Acting P.J.

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Lambden, J.

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[1] Throughout the record and the partiess briefs, Mr. Auhkbars first name is spelled Raven. However, we note that during the contested hearing on the petition, counsel for Mr. Auhkbar brought it to the courts attention that Mr. Auhkbar spells his name Raeven.

[2] In its opening brief, San Mateo County provides details regarding the capacity declaration filed in support of the petition and the declaration of Linda J. Eoff that San Mateo filed in response to Alamedas objection. The petition and supporting documents, including the capacity and Eoff declarations, were not part of the evidentiary record at the hearing and, therefore, could not be considered by Judge Whitley when he rendered his decision. We likewise disregard facts contained in the petition and supporting documentation that were not otherwise introduced at the hearing.

[3] We question whether section 2920 authorizes the public guardian of one county to file a petition seeking to compel the appointment of the public guardian of another county as a conservator. However, as this issue is not before us on this appeal, we must leave it for another day.

[4] Probate Code section 2201 provides: The proper county for the commencement of a guardianship or conservatorship proceeding for a resident of this state is either of the following:  [] (a) The county in which the proposed ward or proposed conservatee resides.  [] (b) Such other county as may be in the best interests of the proposed ward or proposed conservatee.