Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. PR083480
Haerle, J.
I. INTRODUCTION
On October 23, 2009, appellant, the sister of Tyrone Mosby, filed a notice of appeal from two orders of the Marin County Superior Court relating to several petitions for establishment of a conservatorship of the person and/or estate of her brother. The first order purportedly appealed from was issued by the court on June 2, 2009. As a result of the tardiness of appellant’s notice of appeal, this court dismissed that appeal by our opinion and order of April 20, 2010. The remaining appeal is from an order of the court issued on September 22, 2009, which denied appellant’s motion under Code of Civil Procedure section 663 (section 663) to set aside and vacate the June 2 order. That motion was based on alleged errors of the trial court in framing and issuing that order, including its alleged inconsistency with various provisions of the Probate Code. We reject appellant’s arguments and find the order denying the motion to vacate the prior order to be correct and appropriate under section 663.
II. FACTUAL AND PROCEDURAL BACKGROUND
The object of the conservatorship proceedings, Tyrone Mosby (Tyrone), was born on January 17, 1981. At the age of six, he suffered a traumatic brain injury which has resulted in a permanent disability. After the death of his parents, he was placed in various foster homes and, at the age of 18, became a client of Golden Gate Regional Center (GGRC), a Regional Center set up pursuant to Welfare and Institutions Code sections 4500 et seq., and one of the petitioners in this action.
As a consequence of the trauma that led to his permanent brain injury, Tyrone, now 29 years old, received a structured settlement that is being administered by Symetra Life Insurance Company (Symetra), a company based in Seattle, Washington. The settlement terms authorize the payment of a monthly annuity for Tyrone’s benefit adjusted for cost of living increases. The payments are to last for the remainder of his lifetime.
Appellant admittedly had “limited contact” with Tyrone from the period 1996 until 2004, a period during which Tyrone was living with, first, a couple identified as “the Maldonados” and then at an “adult facility” in San Rafael either managed or overseen by GGRC. However, on December 1, 2004, appellant received a letter from Symetra inquiring about Tyrone’s whereabouts. She contacted GGRC and confirmed her identity to Karen Price, Tyrone’s case manager in that organization, later that month.
In February 1, 2008, appellant contacted Price again, asking for information regarding her brother’s whereabouts, as she wanted “power over funds he should be receiving from previous accident.” Price promptly contacted the office of an attorney who was supposed “to be researching potential funds that would be eventually sent to client and setting up a special needs trust.” A phone consultation between Price and that attorney’s office was arranged for a few days later.
A few months later, appellant received, at her Antioch home, a letter from Symetra addressed to Tyrone and inquiring as to his mailing address and asking him to return a notarized form confirming that address. According to the respondents’ brief to this court, appellant forwarded this letter to GGRC’s Price, who then contacted Symetra directly to obtain information about the annuity. Symetra apparently explained to Price “that, due to its inability to locate Tyrone, a significant amount of funds had escheated to the State of California and now that they knew Tyrone’s whereabouts, they would hold all further payments until the situation was resolved.” Price then apparently contacted GGRC’s counsel, who determined to begin “a conservatorship proceeding in order to set up a special needs trust to receive the structured settlement payments and retrieve the escheated funds.” To this end, GGRC filed a Petition for Appointment of Temporary Conservator on July 17, 2008.
Respondents provide no record citations verifying these factual representations, but appellant does not contest them.
On July 25, 2008, the Marin County Superior Court, via Commissioner Roy Chernus, issued an Order Appointing Temporary Conservator. It named Debra J. Dolch, a California licensed private fiduciary, as temporary conservator of Tyrone’s estate. On the same day, Dolch filed a Petition for Substituted Judgment to Create and Fund a Special Needs Trust and to Bring Trust Under Court Supervision. That petition was set for hearing on August 18, 2008.
Miscited by respondents as “July 25, 2009.”
On August 14, 2008, the court appointed Margaret O’Dowd, a San Rafael attorney, as attorney for Tyrone.
Apparently no hearing was in fact held on August 18, 2008; in any event, none of the parties appeared and so an order was entered confirming Dolch’s appointment as temporary conservator.
However, something else did happen on August 18, 2008: appellant filed both her own Petition for Appointment of Probate Conservator of the Person and Estate of Tyrone and her Objection to Petition for Appointment of Conservator and to Petition for Substituted Judgment. Both effectively asked that appellant, as the sister of Tyrone, be appointed conservator of his estate, rather then Dolch or anyone else.
On August 25, 2008, temporary conservator Dolch filed her response to appellant’s Objections and to appellant’s petition for a substituted judgment, to which appellant responded on August 27, 2008.
At a hearing on September 2, 2008, the court scheduled an evidentiary hearing for October 20, 2008, to determine “the need for a conservatorship and the appointment of a general conservator, if needed.” The trial court “also agreed that, if the language of the Trust were approved by stipulation, then the Court would approve the creation of the Trust.”
So encouraged, rather than having a hearing on October 20, 2008, appellant, temporary conservator Dolch, and O’Dowd, the attorney for Tyrone, instead executed and filed a stipulation on that date. Per that stipulation, a Special Needs Trust for Tyrone in the form attached as an exhibit to the stipulation was approved by all the parties. Under it, Dolch would step aside in favor of any other permanent conservator appointed by the court, the trust would remain under court supervision and, pending the final determination by the court regarding the appointment of a conservator, GGRC would remain as Tyrone’s “Case Manager” as long as he was a participant in that organization’s program.
An order for a substituted judgment was attached to this stipulation and executed by the Commissioner on October 27, 2008. Subsequently, at least per the parties briefs to us, the special needs trust, overseen by Dolch, was funded with both the previously escheated (but apparently later recovered) funds and the subsequent annuity payments from Symetra.
Subsequent to the filings of the stipulation and order, appellant filed three other pleadings: (1) a declaration and memorandum of points and authorities regarding the applicable standards for establishing a conservatorship of Tyrone; (2) an alternative petition for appellant to be appointed as the “limited conservator” for Tyrone; and (3) a “Statement of Issues and Request for Findings Fact [sic] and Conclusions of Law” by the trial court.
On April 20, 2009, respondent GGRC filed objections to the conservatorship petition of appellant, i.e., the petition asking for her appointment as a “limited conservator.”
A hearing on all the issues raised by these pleadings and the October 2008 stipulation and resulting order was held on April 23, 2009. At that hearing, appellant, Tyrone, Price, and a witness who had supervised Tyrone in a “day program... for adults with developmental disabilities” testified regarding Tyrone’s condition and needs. The court then heard argument from counsel regarding whether a permanent conservatorship should be ordered or a special needs trust continued and who should be appointed conservator or trustee. The court then took those matters under submission.
Subsequent to that hearing, additional papers were filed, including (1) a declaration of appellant’s counsel offering additional evidence regarding the alleged inadequacies of GGRC’s handling of Tyrone, (2) joint objections to that filing by both GGRC and Tyrone’s counsel, and (3) a declaration by temporary conservator Dolch regarding the assets of the temporary conservancy she was then administering.
On June 2, 2009, the court issued its Findings and Order regarding the various petitions then before it. In summary, its findings were that a permanent conservatorship was not necessary for the care of Tyrone, a continuation of the special needs trust would provide him adequate care and supervision, and appellant would not be appointed either conservator or trustee. It so ordered.
Subsequently, on June 18, 2009, appellant filed a motion to set aside and vacate the June 2, 2009 Findings and Order, and a supporting memorandum of points and authorities. That motion was specifically brought pursuant to section 663. On August 10, 2009, counsel for both GGRC and Tyrone filed a joint opposition to that motion. On August 17, 2009, a hearing was held on appellant’s motion, and the matter was taken under submission by the court. The court also heard, and approved, several uncontested motions for attorney fees brought by counsel for Tyrone and GGRC.
On September 22, 2009, the court issued its order denying appellant’s section 663 motion. Appellant filed a notice of appeal purportedly from both this order and the court’s June 2, 2009, Findings and Order on October 23, 2009.
As noted above and in our earlier opinion in this case, on April 20, 2010, we dismissed appellant’s appeal insofar as it purported to appeal from the trial court’s Findings and Order of June 2, 2009, on the grounds that appeal was filed too late. (Tate v. Golden Gate Regional Center (Apr. 20, 2010, A126801) [nonpub. opn.].) However, per our prior opinion, there remains before us appellant’s appeal from the trial court’s order of September 22, 2009, the order denying her motion under section 663 to vacate the June 2, 2009, Findings and Order.
III. DISCUSSION
Inasmuch as this appeal now pertains, and pertains only, to the trial court’s September 22, 2009, order, the first issue regarding the limited appeal before us is our standard of review under section 663. That section reads: “A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict.”
Citing National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 524 (National Secretarial), respondents contend that that standard is abuse of discretion. Curiously, in her opening brief (which, because of the date it was filed, addressed both orders appealed from), appellant appeared to agree that the trial court had issued a “discretionary decision.” However, we do not agree that our review of the trial court’s September 2009 denial of appellant’s section 663 motion is governed by an abuse of discretion standard. Although National Secretarial does seem to imply the applicability of such a standard of review, it does not do so explicitly and, even if it did, we would not agree.
However, our conclusion in this regard does not help appellant because, as many authorities make clear, a review of an order denying a section 663 motion involves only a very few issues, all of them essentially legal. And a consideration of those issues is not beneficial to appellant. For example, in Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153 (Simac), a panel of Division Four of this court held, regarding section 663: “A motion to vacate under section 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence. The motion to vacate under section 663 is speedier and less expensive than an appeal, and is distinguished from a motion for a new trial, to be used when, e.g., the evidence is insufficient to support the findings or verdict.” (See also County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738.)
A few years later, another of our sister courts, citing both of these decisions, stated that section 663 “is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the court or jury or which are otherwise uncontroverted.” (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203 (Forman).)
More recently, in Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, our colleagues in the Sixth District held that section 663 was not available to an appellant seeking to vacate a stipulated judgment. (Id. at p. 15.) In so holding, that court quoted the passage above from Simac and then added: “A stipulated judgment does not rest upon facts established by evidence. In the case of a stipulated judgment, it is impossible for a court to say that the judgment is not consistent with or not supported by the facts and it is impossible to substitute the correct judgment which is consistent with and supported by the facts.” (Id. at p. 14.)
Finally and most recently, just two years ago a panel of the Third District rejected an attempt by an appellant to use a section 663 motion to overturn a judgment of dismissal entered after a demurrer was sustained without leave to amend. It ruled: “[S]ection 663 only ‘empowers a trial court, on motion of “[a] party... entitl[ed]... to a different judgment” from that which has been entered, to vacate its judgment and enter “another and different judgment.” ’ [Citing Forman.] As the court noted in Forman, a section 663 motion ‘is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the court or jury or which are otherwise uncontroverted.’ (Forman, at p. 203.) Here, [appellant] was not asking the trial court to enter a different judgment. Instead, he was seeking to have the court vacate its prior ruling on a demurrer. The relief sought would not involve the entry of a different judgment but would merely allow [appellant] to file further pleadings.” (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1575.)
Per these authorities, the only issue before us in regarding the trial court’s September 2009 order denying appellant’s section 663 motion is whether that order involved an “erroneous application of the law to facts which have been found by the court... or which are otherwise uncontroverted.” (Forman, supra, 173 Cal.App.3d at p. 203.) Put another way, what is not before us are issues such as whether: (1) the trial court’s June 2, 2009, Findings and Order were supported by substantial evidence or (2) that court abused its discretion in any manner by denying the various conflicting motions for the establishment of a conservatorship and, instead, ordering the creation of a special needs trust to be administered under court supervision and appointing a trustee to administer that trust.
We find no “erroneous application of the law” to the significant facts found by the trial court in its June 2, 2009, Findings and Order. (Forman, supra, 173 Cal.App.3d at p. 203.) Those facts were, in essence, that: (1) although Tyrone’s “vocabulary is limited, he was able to be understood during his testimony in court”; (2) he has the capacity to “give informed consent for medical treatment”; (3) in view of the services Tyrone was and is currently “receiving from GGRC, a conservatorship of the person is not necessary”; (4) however, he lacks the capacity to handle his financial affairs aside from managing his “weekly allowance” from GGRC; (5) the trust arrangement currently in effect “is the least restrictive alternative for Tyrone, ” and will provide “sufficient structure to protect [his] financial interests”; (6) thus “a conservatorship of the estate is not necessary”; (7) a professional fiduciary rather than a family member “will better serve Tyrone’s needs” as a trustee.
Appellant’s first objection to these findings is that they were not contained in a Statement of Decision as required by Code of Civil Procedure section 632 (section 632).
There are at least four problems with this argument. The first is that no statement of decision was ever requested by appellant, either before or after the court’s Findings and Order of June 2, 2009. The title of appellant’s April 14, 2009, filing with the court was “Statement of Issues and Request for Findings of Fact and Conclusions of Law, ” and our examination of that document reveals no request for a formalized section 632 statement of decision. Nor did appellant’s counsel, in his oral argument to the court at the conclusion of the April 23, 2009, hearing, request a statement of decision.
Second, assuming the trial court’s June 2, 2009, “Findings and Order, ” constituted a “tentative decision” under section 632, appellant did not request a statement of decision after the issuance and filing of that order.
As our Supreme Court made clear in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1136-1138, a litigant may not take advantage of an alleged error of this nature on appeal when he or she could have brought the issue of the asserted inadequacy of a trial court’s statement of decision to its attention, but failed to do so.
Third, this was not the sort of proceeding as to which section 632 mandates a statement of decision, even if one was requested. “In general, ... section 632 applies when there has been a trial followed by a judgment. [Citation.]... This is true even if the motion involves an evidentiary hearing and the order is appealable.” (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040; see also 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 392, pp. 460-461 and cases cited therein.) Under this law, we conclude that section 632 is inapplicable in a proceeding of this sort.
Fourth and finally, although brief and not as formally organized as a normal post-trial statement of decision, the trial court’s June 2, 2009, Findings and Order fully set forth its relevant factual findings and the conclusions it drew therefrom. It also fully explained the premises upon which it determined to deny the requests for either a permanent or limited conservatorship and, instead, to continue the special interest trust, overseen by a professional trustee, i.e., the trust created by the trial court’s order of October 27, 2008, the order which followed the parties’ stipulation.
The only other issue raised in appellant’s reply brief which we find reviewable under the limited scope of review of a section 663 order is whether the findings of the trial court legally required it to order the creation of a permanent conservatorship for Tyrone and appoint appellant as conservator.
Again, we note that must disregard many of the arguments raised in appellant’s opening brief, because it was written on the assumption that this court would be substantively reviewing both the trial court’s June 2, 2009, Findings and Order and its later, September 22, 2009, denial of appellant’s section 663 motion. In fact, as already noted several times, we are reviewing only the latter.
There are two problems with this argument. The first is that it was not made to the trial court after that court issued its Findings and Order on June 2, 2009. Appellant’s memorandum of points and authorities in support of her June 18, 2009, motion under section 663 to vacate the trial court’s June 2 Findings and Order simply reargued the evidentiary issues heard and considered by the court and concluded by urging it to “reissue its decision using the following findings of fact and conclusions of law.”
Second, we have no difficulty in concluding that no legal requirement for the establishment of any type of conservatorship flowed from the trial court’s factual findings. As noted above, that court found that, in view of the services Tyrone was currently receiving from GGRC, a conservatorship of the person is not necessary, but he did need assistance in handling his financial affairs aside from his “weekly allowance, ” that the trust arrangement currently in effect “is the least restrictive alternative” for him and would provide “sufficient structure to protect [his] financial interests, ” and, therefore, “a conservatorship of the estate is not necessary.”
Probate Code section 1800.3, a very significant provision never mentioned in appellant’s section 663 motion to the trial court, makes very clear what the governing law is in a proceeding of this sort. It provides: “(a) If the need therefor is established to the satisfaction of the court..., the court may appoint: [¶] (1) a conservator of the person or estate of an adult, or both... [¶] (b) No conservatorship of the person or the estate shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.” (§ 1800.3.) Section 1800.3 is made expressly applicable to all conservatorships of the person and/or estate by the first words of section 1801. The terms of section 1800.3 thus apply to petitions for a limited conservatorship of “a developmentally disabled adult, ” because that type of conservatorship is expressly identified in section 1801, subdivision (d).
All further statutory references are to the Probate Code, unless otherwise noted.
Those words are: “Subject to Section 1800.3:” (See also, to the same general effect, §§ 29 and 30.)
Appellant spends much of her reply brief arguing that section 1828.5, subdivisions (b) and (c), require the appointment of a limited conservator for a developmentally disabled adult such as Tyrone. We disagree; in the first place, no such mandate is set forth anywhere in section 1828.5.
Additionally, by the express wording of section 1800.3, the establishment of even a limited conservatorship may be done only as and when “the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.” (§ 1803, subd. (b).) Here, the trial court found precisely the opposite, i.e., that the “current arrangement is the least restrictive alternative.”
As one commentator has recently noted: “Both general and limited conservatorships are supervised by the probate courts and are governed by the same statutory provisions, unless a more specific provision exists which applies to a limited conservatorship.” (Hunsaker, Limited Conservatorships: A Delicate Balance (2008) 50 Orange County Lawyer 1.) Because section 1800.3 expressly governs all conservatorships established pursuant to section 1801, and because the latter section governs limited conservatorships per its subdivision (d), there is no contrary statutory provision applying to a limited conservatorship. Additionally, nothing in section 1828.5 suggests, even in the slightest, that the language of section 1800.3, subdivision (b), does not apply to a court’s consideration of a petition for the establishment of a limited conservatorship.
Finally, section 1801, subdivision (d), also makes clear that such is the preferred alternative. That subdivision states, in relevant part: “A limited conservator of the person or of the estate, or both, may be appointed for a developmentally disabled adult. A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations....” (Emphasis supplied.)
For all of these reasons, under the limited scope of appellate review of an order denying a section 663 motion, we cannot and do not find that the trial court made any sort of “erroneous application of the law to facts which have been found by the court... or which are otherwise uncontroverted.” (Forman, supra, 173 Cal.App.3d at p. 203.)
IV. DISPOSITION
The order appealed, i.e., the court’s order of September 22, 2009, denying appellant’s section 663 motion, is affirmed.
We concur: Kline, P.J., Richman, J.