Opinion
A144181 A145115
05-02-2017
T. ANNE LASSAHN, Plaintiff and Respondent, v. RANDY EDGAR, as Conservator, etc., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. PRO123140)
These consolidated appeals arise from two probate orders made by the San Mateo County Superior Court, orders that arise out of the settlement of a litigation essentially claiming undue influence. The litigation had been the subject of several court hearings, and the possible settlement had been the subject of discussion, including with the court, for many months. One appeal (No. A144181) is from an order refusing to vacate a prior order approving the settlement and the appointment of a professional fiduciary as guardian ad litem for Maureen R. Sturgeon (Maureen or Maureen R.), an adult with a developmental disability whose interest could be affected by the settlement. The other appeal (No. A145115) is from an order approving the fiduciary's first accounting.
Appellants are Randy Edgar, Maureen's first cousin once removed, and his spouse, Cheryl Edgar (when referred to collectively, the Edgars), who appear here under a durable power of attorney and as her conservators by order of the Mendocino County Superior Court (an order issued after the close of the proceeding that produced the appeal in No. A144181 and prior to the proceedings that produced the appeal in No. A145115). The Edgars' opening brief begins with a quotation from the Old Testament: "[t]he love of money is the root of all kinds of evil." (1 Timothy 6:10.) And the Edgars' 52-page opening brief and their 50-page reply brief seek to demonstrate that the litigation over the trust was in essence a sham, the attack on the instrument that led to the settlement a "faux challenge"—all to line the pockets of the various attorneys and the professional fiduciary. So their brief concludes: the various parties, the professional fiduciary, and "their attorneys think they can rob the Trust blind and steal from Maureen under the guise of settlement, and get away with it. In comparison to these parties and attorneys, the sticky-fingered attorney in Moore, who pilfered about $170,000 in unauthorized 'fees' from his incapacitated client's conservatorship estate and was taken to task for it by the trial and appellate courts and referred to the State Bar for professional discipline, is an amateur. ([Estate of] Moore [(2015)] 240 Cal.App.4th 1101, 1103-1107, 1111.) Their only mistake was to get caught. The Court should reverse."
We disagree, and we affirm, concluding that the hyperbolic, ad hominem attacks on the lawyers and the professional fiduciary are misplaced—and the orders of the trial court correct.
BACKGROUND
The two probate orders involved here were made in connection with the settlement of litigation arising out of the estate plans of Robert Sturgeon (Robert) and, more significantly, Maureen K. Sturgeon (Maureen K.), his second wife. Robert had one daughter, Maureen. Maureen is currently in her 60s, and is described as an adult with a severe disability.
As is typical in cases such as this, we refer to family members with the same surname by their first name. Other parties and participants will be referred to by their surname.
Two significant participants here are Randy Edgar and Cheryl Edgar, who are the appellants. Randy is the son of Nancy Edgar, Maureen's first cousin. Maureen is currently living with the Edgars in their Ukiah home, and has been since 2011. In addition to housing Maureen, the Edgars also have two formal legal relationships with her, under two documents signed by Maureen on May 7, 2013: (1) a durable general power of attorney (DPOA) in which Maureen appointed the Edgars as her agents for financial matters and nominated them as conservators of her person and estate; and (2) an advance health care directive by which Maureen appointed the Edgars her agents for health decisions.
For several years prior to that Maureen had been living with Nancy and Richard Edgar, who moved to Florida. Maureen opted to remain in California, to be near her mother.
The Trust
In October 1996, Robert and Maureen K. executed a living trust, the Sturgeon Family Trust (the trust). It designated Robert and Maureen K. as co-trustees, Margaret Palmer as first successor trustee, and Lori Babcock as second successor trustee. Babcock is Robert's niece.
The trust provided that on the death of the first spouse, the trustee shall divide the trust estate into two separate trusts, designated the "Survivor's Trust" and the "Residual Trust." The trust then described what was to be included in the survivor's trust, and then the residual trust. As pertinent here, the trust provided that after the death of the surviving spouse, Maureen would receive the contents of several accounts, four others would receive various other gifts and accounts, and the residue would be distributed one-half to Maureen and one-half to George and Fiona Hutcheon, of England.
"1. The Surviving Spouse's interest in the Settlors' community property, included in or added to the trust estate in any manner, including any undistributed or accrued income on it.
"2. The Surviving Spouse's separate estate, if any included in or added to the trust estate in any manner, including any undistributed or accrued income on it.
"3. A pecuniary amount equal to the maximum marital deduction allowable for determining the federal estate tax . . . ."
"1. The balance of the Deceased Spouse's interest in the Settlors' community property.
"2. The balance of the Deceased Spouse's separate property included in the trust estate.
"3. Any property from the Survivor's Trust disclaimed by the Surviving Spouse."
On September 9, 1998, Robert and Maureen K. executed a first amendment to the trust (first amendment). The first amendment designated Dennis Houghtelling, Robert's nephew, as the first successor trustee in place of Palmer; Babcock remained the second successor trustee. Under the amendment, Houghtelling was to receive $50,000, and the residue was to be distributed one-half to Maureen and one-half to George and Fiona Hutcheon.
Robert died in 2008, upon which his portion of the trust became irrevocable (the residual trust). Houghtelling and Babcock accepted their nominations as co-trustees of the residual trust.
On August 30, 2012, Maureen K. executed a second amendment to the trust (second amendment), and also a will. These instruments dramatically changed her estate plan, and brought other people into the picture, most significantly Gail Chang. The second amendment provided in pertinent part as follows:
"3. Maureen K. Sturgeon, as trustee and pursuant to the terms of the Sturgeon Family Trust, divided the trust estate into two separate trusts: The Survivors Trust and the Residual Trust. This division and allocation was made in accordance with Paragraph A, Article III of the Sturgeon Family Trust, as set out in Schedule A.
"4. The Survivors Trust and Residual Trust consist of equal shares and value in each Trust.
"5. Under the Sturgeon Family Trust, the Surviving Settlor has powers of appointment, revocation and amendment. . . . Surviving Spouse has exercised this power of appointment by execution of Will. Further, under Paragraph X of the Sturgeon Family Trust, the Surviving Settlor may revoke or amend Survivor's Trust.
"6. The Surviving Settlor intends for this instrument (Second Amendment to Trust Agreement) be an amendment consistent with her exercise of her Power of Appointment under Paragraph C, Article V, with respect to all assets of the Survivor's Trust. Accordingly, upon the the [sic] death of the Surviving Settlor all the assets of the Survivor Trust shall be distributed as provided by this instrument and not in the same manner as provided for in the Residual Trust.
"7. By this instrument, the Surviving Settlor also intends to supersede, amend and restate terms of the Sturgeon Family Trust to the extent permitted under Article X, which provides, 'On the death of Deceased Spouse, the Surviving Spouse shall have the power to amend, revoke or terminate the Survivor's Trust'. . . .
"8. The provisions of Paragraph A of Article XIV provide 'For all trusts under this instrument, the Trustee and successor Trustee shall be those persons named below. Each successor Trustee shall serve in the order designated, if the prior Trustee fails to qualify or ceases to act, the other shall act as sole Trustee.
"AMENDMENT"
The second amendment then went on to provide for specific monetary distributions totaling $875,000: $70,000 in 13 specific gifts to five charities and eight individuals; $455,000 to Chang; $150,000 to George Lawrence; and $200,000 to Isabel Ferrol. The second amendment changed significantly the distribution of the residue, providing as follows:
"2. DISTRIBUTION OF RESIDUE
"All the rest and reside [sic] of my trust estate shall be distributed to Gail Chang to be held in trust, as Trustee, for the benefit of MAUREEN R. STURGEON, beneficiary, for the following uses and purposes:
"A. PAYMENT AND DISTRIBUTION OF INCOME AND PRINCIPAL
"The entire trust estate shall be held and administered as one trust for the lifetime of MAUREEN R. STURGEON. The Trustee shall apply the net income and principal of the trust estate as follows:
"1. Periodic Distributions. The trustee shall pay to or for the benefit of Beneficiary, quarter-annually or at more frequent intervals, as much of the income and principal of the trust as the trustee, in the trustee's discretion, considers advisable for Beneficiary's support, health, and education, including professional education, after taking into consideration other resources of Beneficiary, the resources of the trust, and the likely future needs of Beneficiary within the trust term.
"2. Beneficiary's Failure to Survive. If MAUREEN R. STURGEON, as Beneficiary dies before final distribution, the trust shall terminate and the remaining trust property shall be distributed outright free and clear of the Trust, equally to LORI BABCOCK of Brentwood, California and MARTIN C. HUTCHEON of Scotland."
Martin is the son of Fiona.
A month after executing the second amendment, Maureen K. died.
The Litigation
On March 5, 2013, Houghtelling and Babcock filed a petition in San Mateo County Superior Court. They were represented by Bruce Elworthy, of Wyoming, apparently the state where Babcock lived. The petition was, as Elworthy would later describe it to the court, for the benefit of Maureen, to "make sure that there was sufficient funds to take Maureen R. Sturgeon through her remaining lifetime . . . ."
The petition named two respondents, Chang, individually and as successor trustee, and Lawrence, individually and as a beneficiary of the trust. The petition included claims of undue influence, fraud, and elder abuse, and among other things sought the removal of Chang.
On May 2, 2013, in her capacity as successor trustee, Chang filed her response to the petition. She was represented by the Redwood City firm of Aaron, Riechert, Carpol & Riffle, APC, later to be associated with Hopkins & Carley. Chang's response was served on numerous attorneys and others, including, as pertinent here, Maureen at "1561 Glenwood Drive, Ukiah CA 95482," the Edgars' home. Chang also filed a response as an individual, represented by Mountain View attorney Jeffrey Loew.
As indicated, the two legal documents executed by Maureen appointing the Edgars were signed on May 7, 2013. Whether the documents were signed in light of Maureen's receipt of the response or merely coincident with its timing is purely a matter of conjecture.
Also on May 2, Lawrence filed his response to the petition, represented by Palo Alto attorney David Packard.
The issue on the litigation was now joined, and the parties embarked on extensive discovery typically associated with the fact-intensive, contentious litigation of this type, including a claim of undue influence. That caused the parties to quickly incur litigation fees and costs, the effect of which was to deplete the assets of the trust. So, with the knowledge and assistance of the court, the parties turned their attention to possible resolution of the dispute.
Meanwhile, on July 1, 2013, Chang as successor trustee filed her first account and petition for (1) settlement of account and (2) award of trustee's fees. Among other things, Chang's petition showed that $370,000 had been distributed, apportioned equally between the residual trust and the survivor's trust. The petition was set for hearing on September 6, and notice of Chang's petition was given to Maureen.
Houghtelling and Babcock filed objections to Chang's petition. The objections began with a section entitled "Relevant Background," which among other things set forth their version of Chang's claimed participation with the second amendment and the will. These objections, too, were served on Maureen.
The Settlement With Lawrence
Prior to the hearing on Chang's petition, Houghtelling and Babcock reached a settlement with Lawrence, the person to whom $150,000 was to be distributed under the second amendment. The settlement provided that Chang, as trustee, would distribute $100,000 to Lawrence (and his attorney), and that $50,000 would be distributed to fund a trust for Maureen, payable on final distribution of the survivor's trust.
On July 18, 2013, Lawrence filed a petition for approval of the settlement, which attached a copy of the settlement agreement. It was set for hearing on August 28, and thereafter continued to September 6. Notice of the hearing (and continued hearing) was served on Maureen and also on Mendocino County attorney Myrna Oglesby, who had been identified as an attorney for Maureen. No opposition to Lawrence's petition was filed, and by order of September 6 the court approved it. This order, too, was served on Oglesby.
Meanwhile, on July 19, Chang filed her reply to Houghtelling's and Babcock's objections, setting forth in detail Chang's relationship with Maureen K., supporting why Maureen K. would provide as she did in the second amendment. Chang's recitation included the following:
"Chang disputes all allegations that she unduly influenced Maureen K. Sturgeon ('Decedent') . . . . Decedent executed her estate plan with her attorney, Gerald Woods, of her own free will. At Decedent's request, Chang asked their mutual attorney friend, Vincent O'Malley, if he could refer Decedent to an Estate planning attorney. O'Malley gave the name of Woods; Chang did not previously know Woods. Chang also used Woods's service to prepare her estate plan trusting the recommendation of O'Malley. Woods, however, met with Decedent privately regarding Decedent's estate plan and did not discuss any changes to the dispositive provisions in Chang's presence. These circumstances do not constitute active involvement.
"In the amendments to her estate plan, Decedent decided to leave approximately 1/3 of her estate to her best friend, Chang. Decedent did not have any children or any nearby family members who she was close to. Decedent and Chang spent almost every day together and nearly all major holidays. They frequently went on vacations together. Decedent even was with Chang when Chang's husband passed away in 2010. There was no one closer in Decedent's life over her last four years than Chang. Under these circumstances, a gift of 1/3 of the estate is not undue and makes sense from a reasonable person's perspective.
"Houghtelling and Babcock argue that Decedent's intention was to provide for her step daughter, Maureen R. Sturgeon ('Maureen R.'). But Decedent's original estate plan did not do this. Had the original plan been followed, Maureen R. would have received about one half of the Survivor's Trust created under the Sturgeon Family Trust ('Survivor's Trust'). As things stand, she receives the residue of the Survivor's Trust in trust for her lifetime which will be a little less than one half of the total Survivor's Trust. [¶] . . . [¶]
"Should this case proceed to trial, Chang will be able to call a long list of people who can testify to Chang and Decedent's relationship. Chang is unsure what evidence of undue influence Houghtelling and Babcock will have to present besides their own biased testimony. Babcock receives one half of the residue of the trust for Maureen R. upon Maureen R.'s death."
Chang's reply, with its specific references to Maureen, was served on Maureen and Oglesby.
On November 15, 2013, the trial court entered its order on Chang's petition. With some exceptions to allow Houghtelling and Babcock to take positions in the future, the court granted Chang's petition, including ratifying and approving all of Chang's acts as successor trustee. This order, too, was served on Maureen and Oglesby.
Against the background of a March 3, 2014 trial date, in late December 2013, the parties entered into a stipulation and order that recited that the parties were heavily involved in settlement negotiations. Following several recitals, the parties stipulated that "in light of time-pressures associated with the holidays, as well as the attendant costs and deadlines associated with the litigation of the Petition, the Parties desire to 'stand-still' in the litigation and work on completing their mutual release and Settlement Agreement without distraction."
The Global Settlement
In early 2014 the parties reached a settlement, memorialized in a May 2, 2014 settlement agreement between Houghtelling and Babcock on the one hand and Chang on the other, and signed by them and their attorneys. The settlement provided in essential part that Chang would receive $300,000 from the survivor's trust; Houghtelling would receive $50,000 from the residual trust; and Babcock $150,000 from that trust. Chang, Babcock, and Houghtelling all agreed to waive their right to any trustee fees. As to attorney fees, the parties agreed that Chang's attorney fees would be capped at $215,000 and the fee would be paid as an " 'off the top' " expense of trust administration. Houghtelling's and Babcock's attorney fees would be paid from the residual trust.
Paragraph 7 of the settlement agreement provided as follows:
"7. Division of the Trust: The Parties agree that the time and effort that they and their counsel have spent in an effort to determine the division of the Trust into the Survivor's Trust and the Residual Trust should not have to be duplicated by the Successor Trustee and that the Parties possess sufficient knowledge having thoroughly researched the issues relating to the sub-trusts and the gifts and bequests described thereunder to enable them to advise the Court with respect to the intended distributions under the sub-trusts and which such distributions remain viable and which have been adeemed.
"The following information is being provided for the convenience of the Successor Trustee and it is up to the discretion of the Successor Trustee as to whether to independently verify it. . . ."
The paragraph then went on to describe various gifts from the residual trust, including one to Maureen, and then this for the residue: "vi. Residuary: The Trust provided that one half of the residuary shall be distributed to Maureen R. Sturgeon and one-half to George T. and Fiona Hutcheon. As to the one-half distribution to Maureen R. Sturgeon, that shall be distributed in accordance with Paragraph 6 j iii, above."
There followed distributions from the survivor's trust, ending with this for the residue: "Residuary: The Trust provides that one half of the residuary shall be distributed to Lori J. Babcock and one-half to Martin Hutcheon upon the death of Maureen R. This provision is confirmed."
The settlement agreement also made extensive reference to Maureen, providing in pertinent part as follows:
"j. Maureen R. Sturgeon. Maureen R. Sturgeon ('Maureen R.') is a remainder beneficiary of the Trust. The Parties agree that Maureen R. has certain special needs arising from certain disabilities. Accordingly, the Parties agree that:
"i. The Parties will jointly seek the appointment of T. Anne Lassahn as the Guardian Ad Litem for Maureen R. in connection with the petition for court approval of this Agreement. Counsel for Petitioners shall prepare the necessary documents to effect this result.
"ii. The Successor Trustee will immediately file a petition seeking a conservatorship of the person and the estate for Maureen R. in the San Mateo Superior Court (the 'Conservatorship Petition'). The Successor Trustee will nominate herself as conservator of Maureen R.'s person and estate. . . . [¶] . . . [¶]
"v. Maureen R. Sturgeon: The Trust provided that the contents of AT&T Account (#18722-03445) shall be distributed to this beneficiary. This gift shall be distributed in accordance with Paragraph 6 j iii, above. . . .
"vi. Residuary: The Trust provided that one half of the residuary shall be distributed to Maureen R. Sturgeon and one-half to George T. and Fiona Hutcheon. As to the one-half distribution to Maureen R. Sturgeon, that shall be distributed in accordance with Paragraph 6 j iii, above."
A Professional Fiduciary Becomes Involved
As quoted above, the parties had agreed to seek the appointment of T. Anne Lassahn to become the guardian ad litem for Maureen in connection with the settlement, and also to become the successor trustee in light of the agreed-upon resignations of Houghtelling, Babcock, and Chang. Lassahn sought the counsel of attorney Edward Thirkell, who reviewed the settlement agreement, and noted that it called for Lassahn to file a conservatorship petition in San Mateo County. Thirkell explained that San Mateo would be an improper venue, since Maureen was a resident of Mendocino County. Based on the information that Oglesby represented Maureen, on May 21, Thirkell talked to Oglesby by telephone, who confirmed she represented Maureen.
Lassahn had been providing fiduciary services in San Mateo, San Francisco, and Santa Clara Counties since 2001, and had been on the referral lists for San Mateo and Santa Clara Counties since 2009.
On June 2, Houghtelling and Babcock filed a petition to appoint guardian ad litem, approve global settlement, and for an order approving and directing financial distributions. The petition was set for hearing on July 23. The petition and the notice of hearing were served on Maureen and Oglesby.
Thirkell talked to Oglesby again on June 24, a conversation he described in his declaration as follows:
"10. I next spoke with Ms. Ogelsby [sic] on June 24, 2014. By that time she had received the petition to approve the settlement agreement and had read the attached agreement.
"a. Ms. Oglesby told me that she had no objection to the Settlement Agreement, but did not agree that there was a need for a conservatorship of the person or estate.
"b. We also discussed Maureen's outright inheritance from the Sturgeon Trust. It was Ms. Oglesby's opinion that those funds should not go to Maureen outright but should be left in the trust for Maureen's benefit, and if so, there would not be a need for a conservatorship of the estate.
"c. Ms. Oglesby told me that she did not have any objection to T. Anne Lassahn being appointed guardian ad litem as proposed in the Settlement Agreement.
"d. Ms. Ogelsby [sic] also told me that Maureen was happy living with Randy and Cheryl Edgar and was involved with the local Regional Center."
While the petition was set for July 23, Thirkell suggested Lassahn be appointed in advance of that date, so that the hearing would be more productive. So, on June 30, 2014, via electronic transmission, ex parte notice was given to Oglesby and also to Santa Rosa attorney Murray Zatman (who Thirkell learned represented the Edgars) that the following day, July 1, the parties would be seeking an ex parte order appointing Lassahn as guardian ad litem for Maureen. The ex parte application contained the same verified statements as the earlier served petition: Maureen has a disability within the meaning of Probate Code section 3603, and appointment of a guardian ad litem was necessary under the terms of the settlement agreement.
Neither Oglesby nor Zatman appeared at the hearing on July 1, nor submitted any objection, and the trial court appointed Lassahn as guardian ad litem. In performance of her duties as guardian ad litem, Lassahn travelled to Ukiah on July 14, the results of which she described in her July 16 report to the court:
"3. On July 14, 2014, I traveled to Ukiah where I met with Cheryl Edgar, Maureen Sturgeon, and Myrna Ogelsby [sic]. I also visited Cheryl's residence . . . . Maureen lives on [sic] one of the bedrooms in a four bedroom modular home occupied by Cheryl and Randy Edgar and their two teenage daughters. Maureen's room is a beautiful, charming, country style room next to the daughters' room. In my meeting I learned the following:
"A. Cheryl Edgar takes Maureen every Tuesday, Thursday and Saturday to see Maureen's mother who resides in a nursing home in Ukiah.
"B. Maureen does not appear to be disabled until you talk to her. She appears very happy in her current environment.
"C. Maureen attends an all day program Monday through Friday, which she enjoys.
"D. Cheryl Edgar has control of Maureen's assets with the power of attorney, and has the financial information in Quick Books and is willing to share the information with me. Maureen Sturgeon receives monthly pension and Social Security payments that have been managed by Cheryl, who has an investment adviser who oversees the investments of Maureen's funds.
"E. Maureen has lived with the Edgars for free and the Edgars did not ask me for compensation, or reimbursement expenses for care for Maureen Sturgeon, which I feel should be offered to them.
"F. The Edgars drive Maureen around as needed and they take her with them on their family vacations.
"4. Based on the fact that both the attorney for Cheryl and Randy Edgar and the attorney for Maureen Sturgeon have no objection to the settlement agreement except for the requirement that I file a petition for a conservatorship of Maureen Sturgeon's person and estate, I have no objection to the other terms of the settlement agreement.
"5. Since there are powers of attorney that have been in place for some time and since those powers of attorney appear to effective [sic] in caring for Maureen Sturgeon's personal and financial needs, I do not see a need for a conservatorship of either the person or estate. In my opinion, it would be cruel to disrupt the loving living situation in which Maureen currently resides."
After Lassahn filed her initial report, attorney Thirkell had a phone call with Cheryl Edgar in which he learned that the Edgars in fact received all of Maureen's monthly income of $2,500. Based on this information, on July 21, Lassahn filed a supplemental report conveying her concern regarding Maureen's estate and informing the court that she believed a conservatorship would be in Maureen's best interest.
Both of Lassahn's reports were served on Oglesby and Zatman.
The Court Approves the Settlement
The hearing seeking approval of the settlement agreement came on as scheduled, on July 23. Four counsel appeared in person: Elworthy for the petitioners, Thirkell for Lassahn, and two attorneys for Chang in her separate capacities. Attorney Zatman appeared by telephone on behalf of the Edgars. The hearing began with the court stating that the "[m]atter is on calendar for a number of matters, but as I understand it there have been developments that have changed the dynamic. There has been a concern raised with regard to whether or not, as I understand it, a conservatorship is the least restrictive alternative available to protect the limited conservatee in this case, and that's where we stand. Is that the stumbling block at this time?"
This colloquy followed, begun by this observation by one attorney for Chang:
"MR. BRACCINI [attorney for Chang, as trustee]: I believe your Honor is correct. My understanding is that that issue has been resolved, at least with respect to counsel in the courtroom. Counsel can correct me, everybody present here is in agreement that a conservatorship should be sought, so I believe that issue may be resolved.
"I understand that counsel on the phone, who represents the Edgars, may think otherwise, but if I may acknowledge the 800 pound gorilla, part of the concern in seeking the conservatorship is perhaps due to alleged undue influence perpetrated by the Edgars, against Maureen R.
"MR. ELWORTHY [attorney for Houghtelling and Babcock]: I remind the court that the motivation for our clients bringing this petition in the first place was to make sure that there was sufficient funds to take Maureen R. Sturgeon through her remaining lifetime, and we are concerned for several things."
Elworthy then went on for pages describing his clients' position, including that "there have been misrepresentations to the guardian ad litem, Ms. Lassahn" and "misrepresentations made to us as well about Maureen." This included the observation that perhaps the Edgars were not properly caring for Maureen and/or were misusing her funds. Elworthy then spent several pages describing discussions with attorney Zatman, and promises Zatman had made about providing an accounting. Following all that, Elworthy summed up:
"Now, here is the problem. The material consideration for our clients in this matter was to assure the well-being of this woman, who is their cousin, and one of the last relatives they have, the promise they made to their dying uncle Bob. So, the situation comes down to this.
"We have asked the court to consider bifurcating this hearing, to delay the final implementation of the settlement agreement until the conservatorship can be sought, if it has to be sought in Mendocino County. Apparently, since there is a general appearance here, we would ask the conservatorship could be sought in this court, since Mr. Zatman chose to appear here, even though his clients are not parties to this.
"That is what we are looking at, we are trying to cut off the period of objections, to implement as much as the settlement agreement as we can, but reserve this issue until Mr. Thirkell, or counsel that he would hire for Ms. Lassahn in Mendocino, can obtain that conservatorship, and we can be certain that the funds are adequate to take care of this woman, who is suffering not only from Parkinsons, but has a developmental disability that puts her at an age of approximately 12 to 13, although she is currently 65."
The court responded that it would like to hear from Mr. Zatman. And did.
"MR. ZATMAN: Thank you, your Honor. The purpose of my call is based on what we consider to be improper notice of everything on Maureen Sturgeon.
"Mr. Elworthy cannot have it both ways. If she is considered to be in need of a conservatorship, then my clients, who have power of attorney over her, and who she has been living in their home for two days years [sic], living for seven years in Mendocino County, first with Randy and Cheryl Edgars['] parents, Richard and Nancy, who is the first cousin, and now with them, and she has a very happy home situation.
"Anne Lassahn came up there, she saw it, she was very happy, I was happy with the report she wrote, and she also stated in the initial report that she did not think there was a need for a conservatorship, and we were fine with that. Then, all of a sudden, because we would not agree to the demands of Mr. Elworthy, the next thing I know he files this bifurcation thing, and that's why I am on the phone here today. We are opposed to any form of continuation of the case.
"You reached—they reached a settlement . . . with Ms. Chang and her attorney, and as far as I am concerned, implement that, let Mr. Thirkell and Anne Lassahn do their jobs.
"I have committed to Mr. Thirkell that I will cooperate one hundred percent, and so will my client, with his client. She is a professional, well respected in your community, as is Mr. Thirkell. He and I happen to have passed the same bar exam, our numbers are less than one hundred apart, so we have a similar background, he and I. And I have worked in this field all my career since the late 60's, and I am appalled this thing, where it has gone, and the amount of time and money that is spent on this."
Against that background, Zatman stated that he approved of the settlement, but did not approve of the conservatorship provision. Rather, he said, the court should approve the settlement agreement now and thereafter he and attorney Thirkell and Lassahn would deal with what remains. In Zatman's words: "I do not see any reason why this case should not end today and be decided by what was submitted to the court originally. Mr. Elworthy's arguments are forensic, they have nothing to do with the facts. This case is over, they settled, leave it to conclusion and let Mr. Thirkell and his client, and I and my client, resolve any difficulties that need to be done as far as the beneficiaries are concerned."
The court replied that the "case is on calendar . . . for approval of the settlement, that's what we are here for," to which Zatman interjected, "which I would like to see happen."
The hearing continued for an additional 9 pages, during which attorneys Braccini and Elworthy both expressed the view that the court was permitted to approve the settlement agreement, notwithstanding the dispute over the conservatorship provision, because the court would retain jurisdiction over the case and could later resolve disputes on motion of a party requesting entry of the settlement agreement as a judgment under Code of Civil Procedure section 664.6. The court agreed, and said it would approve the settlement and later "evaluate where this takes us, what the next step will be in the process. Since the issue of the conservatorship does not lie within the jurisdiction of this Court, can't bring it here simply because we have a case in litigation here, it is really not up to me to decide whether or not [a conservatorship] is [needed] . . . to protect Maureen."
Zatman responded: "You are 100 percent correct, the jurisdiction for conservatorship is in Mendocino County, and we have taken that first step [of filing the conservatorship petition] as a precaution, not because we want to. [¶] Frankly, It would be our hope to dismiss it, because we do not think it is necessary, but we did it to protect our client. Mr. Elworthy made it an issue, and that is why we did it. . . . [¶] And as far as I am concerned, let Mr. Thirkell and his client do their jobs. . . . [L]et us do what we are good at and resolve all these issues and bring this thing to a proper conclusion with my clients, and their charge, properly taken care of."
More pages of colloquy followed, included within which was this:
"[THE COURT]: Mr. Elworthy, you raised your hand. I am inclined to simply grant the petition at hand today, and if there is some reason I should not do that, I will hear from you. I have stated my position with regard to the trust; I am not changing it at this time. You seem to be the one concerned about whether or not the petition should be granted today, the only petition before the court today, and that is the petition to approve the settlement.
"MR. ELWORTHY: My concern is that the court, which I believe the court has answered the question, number one, can retain jurisdiction, irrespective of the dismissals, which are required in the settlement agreement. And number two, that, what was just put on the record by Mr. Zatman, can be enforced in this court.
"THE COURT: Nobody cited me any authority indicating that my analysis of 664.6 is incorrect, I think it is correct. To the extent it is correct, I fully intend to continue the jurisdiction of this court to evaluate the settlement moving forward. So, unless I am wrong, that's the case."
Elworthy then stated: "There is one flaw in the [proposed] order that talks about appointing Ms. Lassahn today [as guardian ad litem], and of course she was already appointed." The court responded: "To the extent that's redundant, it is superfluous." The court then granted the petition.
The court thereafter signed the order that stated that Lassahn is "appointed" as both guardian ad litem for Maureen and successor trustee. The order further provided: "At the request of the Parties, the Court strikes from the Settlement Agreement the words 'in the San Mateo County Superior Court' which appears [in the conservatorship provisions of the Settlement Agreement]." Finally, the order states: "This Court . . . retain[s] jurisdiction to enforce the Agreement." The order was served on Maureen.
As indicated, the Edgars had filed a petition for conservatorship in Mendocino County, represented by attorney Zatman. On August 27, represented by attorney Oglesby, Maureen filed a declaration in the conservatorship proceeding stating that she did not want to be conserved, "but if the court determines that such a proceeding is necessary, [then] I join in the Edgar petition [for conservatorship]." "I am very comfortable with having the Edgars handling my financial affairs and assisting me with my personal and physical needs. We consult together concerning my expenditures and income and how they are handled. [¶] . . . [¶] Cheryl Edgar['s] . . . [use of my] pension moneys I receive for my support" "is entirely with my permission and participation. . . . [¶] I am . . . comfortable with how my assets are managed and utilized by Cheryl . . . . I would like my life to continue as it has been, with the Edgars, and without interference by others who might not have my best interests at heart." The conservatorship hearing was continued to November 7. Meanwhile, on August 22, attorney Thirkell filed an ex parte motion on behalf of Lassahn asking the probate court to approve a $10,000 draw from the trust to retain attorney Gregory Spaulding to pursue a conservatorship over Maureen in Mendocino County, with Lassahn as proposed conservator. No one appeared to oppose the motion, and the court granted it.
The approval of the settlement terminated the contentious litigation and terminated the dissipation of the trusts' assets. The settlement also terminated Lassahn's appointment as Maureen's guardian ad litem. Chang, Babcock, and Houghtelling resigned as trustees, and Lassahn became the successor trustee pursuant to the settlement agreement.
On September 15, Lassahn filed a petition for allowance of compensation and costs, requesting payment of her fees in the amount of $8,687 and her attorney fees and costs of $16,696.45. It was set for hearing on October 17. Notice was given to attorneys Zatman and Oglesby.
While Lassahn's petition was pending, the Edgars filed their own petition in San Mateo County.
The Edgars File Their First Petition
On September 18, the Edgars filed a motion to vacate, set for hearing on November 4. The motion said it was seeking two things, to: (1) "vacate the appointment of T. Anne Lassahn (Lassahn) as guardian ad litem for Maureen . . . and to appoint [the Edgars] as co-guardian ad litem . . . and (2) vacate all orders issued by the Court while Lassahn was acting as guardian ad litem." The motion was filed by Zatman "[i]n association with Mark T. Clausen" of Santa Rosa.
The motion claimed that Lassahn's appointment as guardian ad litem violated Maureen's due process rights, that the appointment should have gone to the Edgars, and that Lassahn's (and attorney Thirkell's) dual roles as guardian ad litem and successor trustee gave rise to conflicts of interests that required Lassahn's removal as guardian and necessitated vacation of the challenged orders.
A week later, five declarations were filed in support of the motion to vacate, those of the Edgars, attorneys Zatman and Clausen, and Maureen. Maureen declared in part: "I would like to have [the Edgars] as my . . . guardian ad litem. I understand that means they will make decisions for me about the case. I am happy with the way they have been handling my financial affairs since I started living with them several years ago." Four exhibits were attached to her declaration: (1) the DPOA and nomination of conservator executed in favor of the Edgars; (2) the declaration by Maureen filed in the Mendocino conservatorship case; (3) several reports from the assisted living program in which Maureen participates; and (4) an envelope from a doctor.
The Edgars declared that the allegations of their failure to properly care for Maureen and misuse of her personal income were false. The Edgars and Zatman declared that the Edgars, Maureen, and attorneys Zatman and Oglesby had been opposed to the conservatorship provisions in the settlement agreement. And Zatman declared that he understood the probate court's statements during the hearing on July 23 to mean that the court had disapproved the conservatorship provisions or at least rendered them unenforceable because those provisions state that conservatorship proceedings shall be brought "in the San Mateo County Superior Court," but the court had said it has "no jurisdiction" over the conservatorship proceedings because Maureen lives in Mendocino County.
Lassahn filed opposition to the Edgars' motion, and the Edgars a reply. Accompanying that reply was Zatman's declaration as the "attorney of record for Maureen R. Sturgeon (Maureen) and Randy Edgar and Cheryl Edgar." Among other things, Zatman testified as follows:
"3. Though Maureen and the Edgars were not parties to the settlement agreement and did not participate in settlement discussions, the settlement was nonetheless acceptable to them, attorneys Ogelsby [sic], and me, with the notable exception of the conservatorship clause . . . .
"4. I repeatedly told attorneys Elworthy and Thirkell that I objected to the conservatorship provision because Maureen was not in need of a conservatorship and the Edgars held power of attorney for her. Attorney Myrna Ogelsby [sic] did likewise. [¶] . . . [¶]
"6. Maureen, the Edgars and I were very upset by the ex-parte appointment of Lassahn as guardian ad litem without adequate notice and with no evidence of Maureen's competency. However, I concluded that as a practical matter the issue of Lassahn's appointment as guardian ad litem would be moot provided that Lassahn elected to object to the conservatorship provision of the settlement agreement, as that was the only provision of the agreement to which objection was posed by us."
Meanwhile, on October 2, the Edgars filed opposition to Lassahn's fee petition. The Edgars reiterated the arguments made in support of the motion to vacate, and asked that the petition be continued so that a new guardian ad litem could be appointed for Maureen before the petition was heard.
On October 14, Lassahn filed a response to the Edgars' opposition to the fee petition. In it she took the position that she had stopped representing Maureen as guardian ad litem effective July 23, 2014, on which date it terminated by operation of law, a position successfully urged by Lassahn's counsel at the October 17 hearing on the fee petition:
"MS. LINGYS: [¶] . . . [¶] [T]he settlement proceeded and everything was approved on July 23rd. At that point there is no need for a guardian ad litem any more because it is only for a limited purpose. [¶] I believe there is some confusion, as a guardian ad litem is only for the litigation, and once the litigation was dismissed, there is no need for a guardian ad litem any more.
"THE COURT: That was the court's understanding. [¶] . . . [¶] As the tentative suggests, that is my understanding as well. If it is not explicit, it should be made so. The guardian ad litem relationship between Ms. Lassahn and Maureen is over."
On October 17, the trial court entered its order granting Lassahn's fee petition.
The Edgars' motion to vacate came on for hearing on November 4. The Edgars were represented by attorney Clausen, Lassahn by Thirkell. Clausen's fundamental point was that the order that followed the July 23 hearing was a modification of what had in fact been presented to the court. Thus Clausen argued: "The order provides on page 2: 'At the request of the parties the Court strikes from the settlement agreement the words in San Mateo County Superior Court.' So they are changing the terms of the settlement agreement to allow the conservatorship provision to go forth somewhere else. [¶] That was never before the Court in the petition, that was never raised at the hearing. There was no notice of any of that, there's been no proof that there was in fact a written agreement modified in terms. They simply changed the terms after the hearing."
Clausen went on: "We have raised the issues of this change in the order. [¶] The additional issue that arises is Ms. Lassahn's conflict that we've raised moving from guardian ad litem to trustee."
This colloquy followed, in which the court probed the gist of the Edgars' motion to vacate:
"THE COURT: Your motion to vacate is not a motion to vacate the settlement. It's to vacate the appointment of Ms. Lassahn. It's a fundamental difference.
"MR. CLAUSEN: The motion says, to vacate the order of Ms. Lassahn and to vacate all subsequent orders issued while she was serving as guardian ad litem. The order that issued approving the settlement was issued while she was appointed guardian ad litem approving the settlement.
"The entire issue is over a conservatorship provision, and as I understand the position of Ms. Lassahn and Mr. Thirkell essentially is that they are only doing their job, the parties agreed to the conservatorship provision and the Court approved it, therefore, they need to enforce it. But the Court did not approve the settlement agreement to change the words, San Mateo Superior Court." And, Clausen said in response to the court, he "presume[d] we were doing [that] here by challenging the order that approves the agreement."
Thirkell then spoke, to address Clausen's fundamental argument, describing it as based on "a factual error in what Mr. Clausen indicated to the Court." Thirkell elaborated:
"MR. THIRKELL: [On] June 2nd, 2014, a month and-a-half before the July 23rd hearing of this year, Mr. Elworthy and Ann Marshall, his partner, filed a petition to approve the settlement agreement.
"On page 6 of that petition, there's paragraph 7 at the bottom of the page I would like to read. 'By stipulation, the parties have agreed and request the Court strike from the settlement agreement the words in San Mateo County Superior Court which appears on page 7 Section 6 Paragraph J, sub-section double I, beginning on line 2 and ending on line 3.'
"That particular petition was then noticed and sent to a long list of people including Maureen R. Sturgeon at the home she shares with the Edgars. Now Mr. Claussen [sic] indicates he represents the Edgars, so Maureen Sturgeon was given notice on June 2nd that on the July 23rd hearing there was going to be a request to have the words changed in the settlement agreement from San Mateo County to Mendocino County. So adequate notice was given, and there was no objection at the July 23rd hearing."
With that, the hearing ended with this colloquy:
"THE COURT: All right. Anything further?
"MR. CLAUSEN: I just wish to emphasize and I appreciate what the Court is saying about challenging the settlement agreement, but the Court issued an order approving the settlement agreement, and that's what we are challenging. The order
"THE COURT: Any response to Mr. Thirkell's points?
"MR. CLAUSEN: I have not seen that petition, Your Honor, and I was here after the fact I have been looking through the paperwork I did not see any notice to us about a change of modification of the settlement agreement.
"THE COURT: Mr. Thirkell is showing it to you[.] Perhaps that's unfortunate.
"MR. CLAUSEN: I have no doubt about the representation, Your Honor. I simply am saying I have not seen such document until this morning.
"THE COURT: All right. Thank you for your argument. The tentative ruling is adopted."
On November 24, the court filed its order denying the motion to vacate.
The substantive portion of the order reads as follows:
"1. T. Anne Lassahn's appointment as guardian ad litem terminated upon approval of the settlement agreement by operation of law. To the extent reconsideration is sought it is untimely under Code of Civil Procedure section 1008. There are no grounds for surprise or excusable neglect relief cited;
"2. The power of attorney in favor of Petitioners Randy and Cheryl Edgar gives them no special status as to notice;
"3. New relief first sought by Petitioners in their reply brief is not cognizable;
"4. This Court adopts its tentative ruling."
To complete the developments in 2014, on December 15, Lassahn distributed the assets in the trust in accordance with the settlement agreement. This included distributions to Maureen of $434,520.46 pursuant to the residual trust, and a distribution of $449,040.92 to Chang in trust for Maureen.
On February 2, 2015, a notice of appeal was filed on behalf of Maureen and the Edgars "as conservators and DPA for Maureen." An attachment to the notice of appeal says:
"The Notice of Appeal is intended to preserve and protect the rights of Maureen Sturgeon . . . to appeal the order of November 24, 2014 denying her motion to vacate the following orders:
"(1) Ex-parte order of July 1, 2014 temporarily appointing T. Anne Lassahn as guardian ad litem for Maureen Sturgeon. (No Notice of Entry of Order filed.)
"(2) Order of July 23, 2014 approving settlement and appointing T. Anne Lassahn as trustee of the Sturgeon Family Trust and as guardian ad litem for Maureen Sturgeon. (Notice of Entry of Order filed July 31, 2014.)
"(3) Ex-parte order of August 22, 2014 granting trustee Lassahn's ex-parte application to retain and compensate probate counsel in Santa Rosa to pursue a conservatorship over the person and estate of Maureen Sturgeon."
We designated the appeal No. A144181.
The Court Approves Lassahn's First Accounting
On April 1, 2015, Lassahn filed her first accounting, set for hearing on May 4. It sought approval of her fees in the amount of $24,036, and attorney fees to Thirkell of $58,012.50. Lassahn also sought to increase the reserve from $30,000 to $200,000 as a result of the various motions, and approval of $15,000 to retain appellate counsel to respond to the Edgars' appeal. Lassahn sought determination by the court that the assets of the estate were properly divided pursuant to the settlement agreement.
On April 28, the Edgars filed objections and response to Lassahn's accounting. The Edgars argued that their appeal in No. A144181 divested the court of jurisdiction. They also argued that the settlement agreement and related orders were invalid for the reasons earlier stated in their motion to vacate, and that the settlement agreement was unenforceable because it had not been entered as a judgment in accordance with Code of Civil Procedure section 664.6. Finally, they argued that the fee payments to attorney Elworthy and the Barulich Dugoni Law Group were excessive and should be disapproved in full and that the probate court had no right to revise the terms of the agreement to increase the trust reserve to $200,000.
Lassahn filed a reply, and the matter came on for hearing on May 4. On May 5, the court filed its order that: (1) approved payment of Lassahn's and her attorney's fees; (2) increased the reserve from $30,000 to $200,000; and (3) approved payment of $15,000 to retain appellate counsel. The court did not approve the attorney fees paid to Elworthy. Finally, the court also found that "Lassahn has distributed the estate according to the terms of the Settlement Agreement as no objections were filed suggesting a different interpretation."
On May 11, the Edgars filed their appeal from the May 5 order.
On motion of the Edgars, we ordered the appeals consolidated, and also substituted the Edgars as conservators in place of Maureen, including in No. A144181.
DISCUSSION
A. Introduction to the Issue
As indicated, the focus of the Edgars' appeals is on the claimed misconduct of various attorneys and Lassahn, with pages of the Edgars' briefs referring to various relationships demonstrating claimed conflicts of interest. Some language from the opening brief quoted above is illustrative of the attack on the various professionals. The Edgars' reply brief continues their attack, with comments such as this on page six: "The settlements reflect unethical self-dealing by Houghtelling, Babcock, Chang, Lawrence and Lassahn and their attorneys. Maureen's rights have been trampled at every turn." Or this at page 10, where, following the Edgars' claim that the "less money trustee Lassahn uses for benefit of Maureen, the more money that will remain for Babcock—which [sic] whom Lassahn is aligned under the terms of settlement"—the brief concludes: "The attorneys for former trustees Houghtelling, Babcock and Chang do not have to wait for Maureen's demise to take unfair advantage of her—they already stole a total of $610,000 from the Trust . . . ." There are numerous other examples.
That may be the Edgars' view of what occurred here, at least since attorney Clausen entered the picture. It was not the view of their attorney below, where Zatman described Lassahn and Thirkell as professionals "well respected in [the] community." It certainly was not the view of the trial court. And not of this court. We view what happened here much differently—a view the Edgars' treatment of the record ignores.
The leading appellate commentary offers the following advice: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [Marriage of Davenport (2011) 194 [Cal.App.]4th 1507, 1531] [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions (¶9:294), and may well cause you to lose the case!" (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2016) ¶ 9:27, p. 9-8.) There are some "material omissions" here.
We begin with the fact that the DPOA signed by Maureen appointing the Edgars her agents for financial matters was signed on May 7, 2013, the same day as the health care directive. The DPOA was prepared by attorney Oglesby, as attorney for Maureen, and notarized by her. There is no evidence in the record what caused these documents to come into existence, but it is perhaps no coincidence that Chang's response to Houghtelling's and Babcock's petition in San Mateo County had been filed days before. But coincidence or not, it is the fact—a fact never mentioned in the Edgars' briefs—that at least from May 2, 2013 on, beginning with Chang's response to Houghtelling's and Babcock's petition, every petition, pleading, and notice served in the San Mateo County action was served on Maureen. And apparently from June 2 on, all papers were served on attorney Oglesby as well. The significance of this is that Maureen and her attorney had notice of all that was going on—and did nothing about it. Maureen did nothing. Oglesby did nothing. And the Edgars with their DPOA did nothing.
Not only was there no objection, all involved affirmatively participated with what was occurring. So, for example, Maureen and Oglesby cooperated with Lassahn when she visited Ukiah. And perhaps most significantly, the Edgars' attorney Zatman appeared by telephone at the July 23 hearing and expressly advised the court that they approved the settlement.
The Edgars' brief asserts that the settlement agreement "afforded no benefit to Maureen." Not only do the Edgars fail to support that assertion, the argument fails to address just what Maureen might have obtained if the litigation had not been brought, and/or not settled—that is, just how worse off, if at all, Maureen was as compared to how she would have been if the second amendment had been carried out. So, for example, under the second amendment, Chang would have received $455,000 and Lawrence $150,000. Under the settlement, Chang received $300,000 and Lawrence $100,000—with the $50,000 Lawrence would otherwise have received going to Maureen!
B. Applicable Principles of Appeal
The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Another principle is that an order or ruling that is right on one theory of law "must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 663-664; Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.) The rationale is that there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)
C. Standard of Review
Appellants describe the standard of review this way: "Where appellants' claims present legal questions on which the relevant facts are not in dispute, the appellate court resolves the question as a matter of law, de novo. Claims that turn on disputed evidentiary matters, the court applies a substantial evidence standard of review. (Burch v. George (1994) 7 Cal.4th 246, 254.)" Precisely what the Edgars mean by this is not clear, though certainly the inferences that might be drawn from the evidence was in conflict.
D. The Edgars' Arguments Have No Merit
1. The Appointment of Lassahn as Guardian Ad Litem Did Not Violate Maureen's Due Process Rights
The Edgars' first, and primary, argument is that the ex parte appointment of Lassahn as guardian ad litem violated Maureen's due process rights. The argument has several subparts, including these three: (1) "Notice of the ex-parte hearing was inadequate"; (2) "Due to willful non-disclosure, there was a complete lack of evidence to support the guardian ad litem appointment"; and (3) "Lassahn and her attorneys, Thirkell (in this case) and Loew and Packard (in other cases), suffered from fatal conflicts of interests (and still do today)." We are not persuaded.
Probate Code section 1003 provides that a guardian ad litem may be appointed at any stage of a probate proceeding, either on the court's own motion or on request of a "personal representative, guardian, conservator, trustee, or other interested person." And such guardian may be appointed if the court determines that "representation of the interest otherwise would be inadequate." (Prob. Code, § 1003, subd. (a).)
It is well established that a court may appoint a guardian ad litem on an ex parte application. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 12; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187.) And ex parte notice need only be given the day before the ex parte hearing. (In re Sara D. (2001) 87 Cal.App.4th 661, 670 [holding it permissible to appoint a guardian ad litem on ex parte basis but noting that ex parte applications require notice the day before the hearing, and citing to California Rules of Court, rule 3.1203 (former rule 379) requiring notice to be given no later than 10:00 a.m. the day before the hearing].)
On July 1, Houghtelling filed an application for appointment of a guardian ad litem for Maureen, declaring under penalty of perjury that Maureen has a disability within the meaning of Probate Code section 3603, and that the appointment of a guardian ad litem was necessary pursuant to the terms of the settlement agreement. His attorney Elworthy declared the "Ex-Parte Petition for Appointment of Guardian Ad Litem, Attachments to Petition and Proposed Ex-Parte Order" were served via electronic transmission on Oglesby. Oglesby has filed nothing denying that notice, nor stating that it was not received before 10:00 a.m. In short, Oglesby at no time ever indicated that the ex parte notice was insufficient.
The thrust of the Edgars' argument is that notice was inadequate because it was not given before 10:00 a.m. on the preceding day. The basis of this argument is attorney Zatman who filed a declaration to that effect. Whether notice to Zatman was in compliance with California Rules of Court, rule 3.1203 is of no moment, not in light of all other facts here.
To begin with, Zatman was the attorney for the Edgars, and nothing is cited in support of any rule that they were entitled to notice. Ogelsby was the attorney for Maureen, and there is nothing in the record from Oglesby that notice to her was not in compliance with the rule.
On June 2, Houghtelling and Babcock filed their petition to appoint a guardian ad litem for Maureen and to confirm the settlement agreement. Notice of this petition was served on Maureen personally and also on Oglesby, Maureen's attorney. Neither Maureen nor Oglesby objected to the petition. To the contrary, when Oglesby spoke with Thirkell on June 4, Oglesby indicated she had no objection to Lassahn being appointed guardian ad litem for Maureen.
Not only did Oglesby not object to the appointment, she, along with Maureen, affirmatively participated with Lassahn in her capacity as guardian ad litem. In light of this, well settled principles come into play, illustrated by D.H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 185-186, where the United States Supreme Court held that constitutional and statutory requirements regarding service exist for the defendant's protection, and are therefore subject to waiver. There, by making an appearance in the action, defendant submitted to the court's personal jurisdiction and no service was required. Numerous courts have applied this rule, including ourselves, that " 'An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.' " (Children's Hospital & Medical Center v. Bontd (2002) 97 Cal.App.4th 740, 776, quoting Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117; Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33, 44 [compulsory joinder waived by failure to object].)
As to the Edgars' second subargument, the court properly determined that a guardian was needed because Maureen was disabled and would be impacted by the settlement. So, there was evidence supporting the appointment.
Turning to the third subargument, the Edgars have not demonstrated any conflict of interest in Lassahn, as the guardian ad litem was not adverse to the parties in the litigation. She was not a representative of either attorney Packard or attorney Loew. As such, their identity does not create a conflict for Lassahn. Lassahn was never in an adversarial position to either Chang or Lawrence, and never owed Chang, Lawrence, or their attorneys a duty that would have conflicted with her duties as guardian ad litem.
Whether attorneys Packard and Loew were representing Lassahn in separate and unrelated litigation with different parties while Lassahn was the guardian ad litem or trustee in this case did not create any conflict of interest for Lassahn here.
Lawrence settled out in July 2013, almost a year before Lassahn even became involved.
Indeed, as guardian ad litem, Lassahn was not a party to the litigation, but rather an officer of the court. (McClintock v. West (2013) 219 Cal.App.4th 540, 551 ["court-appointed officer"]; Serway v. Galentine (1946) 75 Cal.App.2d 86, 89.)
Similarly, as trustee, Lassahn was not in an adversarial position to either Chang or Lawrence. When Lassahn was appointed trustee, the settlement agreement had already been approved by the court, and Lassahn's duty was to administer the estate according to the terms of that agreement, to make distributions there provided for—and she did. Those duties did not include paying fees to attorneys Packard and Loew, as their fees had already been approved and paid for by the prior trustee.
The two cases relied upon by the Edgars—Flatt v. Superior Court (1994) 9 Cal.4th 275, and Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811—involve attorneys who took positions adverse to current clients. They have no application here.
The Edgars' reply brief adds an additional due process argument, one not made in their opening brief: that Maureen's due process rights were violated by the failure to appoint a guardian ad litem to represent her during the first 16 months of the case, from March 2013 to June 2014. The argument fails, both procedurally and substantively.
As to the procedural, arguments made for the first time in a reply brief will not be considered. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542; In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 [" 'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.' "]; SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.)
But even if we were to consider it, it could not succeed in light of the record below, where attorney Zatman made clear that the Edgars, Maureen, and attorneys Oglesby and Zatman were adamantly against the appointment because they did not believe Maureen was in need of a guardian ad litem.
The Edgars' second argument is that Maureen's due process rights were also violated by the failure to appoint a new guardian ad litem for Maureen. As indicated, the appointment of Lassahn as a guardian ad litem was to review the settlement agreement. She did that, and also interviewed Oglesby and Maureen. On July 23, the settlement was approved, and that ended the reason for the appointment: All this was acknowledged by the trial court at the hearing on the Edgars' motion to vacate, where, as the court put it, "The guardian ad litem relationship between Ms. Lassahn and Maureen is over."
Superimposed on the above, and also essentially ignored by the Edgars' brief, is that on July 22, 2014, the Edgars themselves had filed in the Mendocino County Superior Court a petition seeking their appointment as conservators of the person and estate of Maureen. Were all that not enough, one last thing overlooked by the Edgars is that Maureen's—and the Edgars'—position has always been that Maureen did not need a guardian, a position asserted even when the Edgars themselves filed their petition in Mendocino!
2. The Edgars' Other Three Arguments All Fail Procedurally
As indicated, the Edgars' brief lists five arguments, the first two of which have been addressed above. The Edgars' third, fourth, and fifth arguments are as follows: (3) "Lassahn has no standing to defend the validity of the settlement agreement"; (4) "The settlement agreement is not enforceable under Code of Civil Procedure section 664.6"; and (5) "The settlement agreement and challenged orders fail because they afforded no benefit to Maureen."
The Edgars' petition below was, as noted, styled a motion to "vacate appointment" of Lassahn and to "vacate all order[s] issued while . . . Lassahn was acting as guardian ad litem." The memorandum accompanying the motion made three arguments: (1) the ex parte appointment violated due process; (2) Lassahn had irreconcilable conflicts of interest; and (3) Maureen's rights were not protected. That was it. Those are the only arguments that can be made here. Any other arguments—i.e., the three arguments noted above—are "waived." (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767, and cases and authorities there collected.)
One closing observation as to the appeal in No. A144181 is that even if there had been some error—which the Edgars have not demonstrated—such error would not compel reversal. That is because the Edgars must show that any error was prejudicial, a rule that derives from both the state Constitution and statutes. California Constitution, article VI, section 13, mandates that a ruling will not be set aside unless it results in "a miscarriage of justice." Similarly, Code of Civil Procedure section 475 provides that courts must disregard any error which "does not affect the substantial rights of the parties," and no appealed judgment or order shall be "reversed or affected by reason of any error, ruling, instruction, or defect" unless the record demonstrates that the error was "prejudicial" and caused appellant "substantial injury" and that a "different result would have been probable."
As indicated above, the Edgars have not met this significant burden, as they have not demonstrated how the lawsuit and its resolution caused harm to Maureen. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
3. Approval of the First Accounting Was Not Error
As noted, appeal No. A145115 was from the May 5, 2015 order approving Lassahn's first accounting. The Edgars' argument on this appeal is this one paragraph: "Because the appeal in A141881 was pending, the order of 5/5/15 at issue in A145115 is void as issued in violation of the automatic stay under § 1310(a) and CCP §916(a). (Varian [Medical Systems, Inc. v. Delfino (2005)] 35 Cal.4th 180.) In addition, the order of 5/15/15 [sic] authorized Trust payment of over $30,000 for work that Lassahn and her attorneys claimed in connection with the conservatorship proceedings which Lassahn lost handily, and $15,000 for appellate counsel Mark Bonino as a retainer in A144181 where no winner has yet been declared. The probate court had no jurisdiction, or no discretion, to order fees be paid from the Trust for work done in connection with these matters in which Lassahn was not the prevailing party and no benefit to the Trust was shown."
Lassahn's respondent's brief does not even argue in support of the appeal, nowhere attempting to refute any of the Edgars' claims.
In light of this, we requested supplemental briefing from the parties, which we have received. While the Edgars' supplemental brief argues at length as to why the appeal in No. A144181 stayed the matter, they nevertheless request that "for benefit of the parties and the trial court," we reach the merits of the Edgars' substantive claims on appeal in No. A145115.
This we do, and we reject their conclusory arguments contesting the trial court's ruling on the fees awarded Lassahn. As to this, the Edgars cite nothing, and they make no genuine attempt to demonstrate that the fees approved in favor of Lassahn evidence an abuse of the trial court's discretion. " 'In challenging attorney fees as excessive . . ., it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' " (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)
Finally on this point, we note that the trial court did not approve the attorney fees paid to attorneys Elworthy and Barulich—the attorney fees the Edgars had objected to below as excessive.
DISPOSITION
The orders are affirmed. Lassahn shall recover her costs.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.