Legal News and Appellate Tips

The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

David Greco, who heads up the appellate practice at the probate litigation firm RMO, LLP, shares with co-hosts Jeff Lewis and Tim Kowal some of the unique features and challenges in probate appeals:

👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.

👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?

👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.

👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.

This one seems wrong to me.

This is a published case in *[Conservatorship of Joanne R.] (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging the establishment or extension of the conservatorship. (Welf. & Inst. Code, § 5350.) So she invoked that right.

But here is what the trial judge says about the appellant’s right to commence a jury trial in 10 days: “if you would like to have a court trial with the judge making the decision we can do that today. If you would like to have a jury trial then we can do that as well, but we won't be able to do it today. We can reschedule and do that in November.”

This is in early February. That’s nine months into a 12-month conservatorship.

The appellant responds “I would prefer a jury trial, but I don’t want to wait until November.” Then after a short colloquy, says, “I think I want to go ahead today and do it.”

Is that a voluntary waiver of the appellant’s right to a jury trial? The Second District Court of Appeal says yes (but with reservations).

I think that is wrong, as I explain in the article. If the Legislature affords a right, it ought to honor it. The fact that the pandemic has made it difficult is not an excuse. Unless and until the Legislature decides to abrogate the right, the courts’ duty is to enforce it.

A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.

But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).

The attorney-appellant, serving as trustee, took money from the estate to pay fees owed individually by his beneficiary client. When the court (correctly) surcharged him for that, the appellant went back to his client demanding she pay up. She refused, so the appellant sued. But the court denied his fees, reasoning his prior invoices showed the fees had been paid in full.

Reversing, the Court of Appeal reasoned the fee obligation was obviously unpaid. The invoices showing payment barely merited a "come on, man."

The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)

[Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.]

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.

The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. (Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)

The Fourth District Court of Appeal concluded the appellants had forfeited all their arguments by failing to raise them in the trial court and by failing to include a proper statement of facts, supported by record citations, in their appellate brief. What sealed the deal for sanctions: in their opposition to the motion for sanctions, the appellants made their own (untimely) request for $4 million sanctions (based on a precluded issue). That did not sit well with the court.

When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)