Conservatorship of Tedesco
Filed 5/8/23
v.
LAURA K. WHITE, et al,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Affirmed.
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Petitioner
and Appellant.
Sheppard, Mullin, Richter & Hampton, Adam F. Streisand, Nicholas Van Brunt
and Valerie E. Alter for Defendants and Respondents Laura K. White, Julie M. Bas, and
Sandra L. Kay.
1 Freeman, Freeman & Smiley, Geraldine A. Wyle, Jeryll S. Cohen, Kevin Bryce
Jackson, and Thomas C. Aikin for Defendant and Respondent David M. Wilson.
In 2015, a conservatorship of the estate of Thomas Tedesco, a wealthy
nonagenarian (Thomas), was created, and Thomas requested the appointment of
respondent David M. Wilson, an independent professional fiduciary, as conservator of the
estate. Thomas’s second wife, Gloria Tedesco (Gloria) was present at the August 10,
2015 hearing and stipulated on the record, through counsel, to Wilson’s appointment.
Approximately six years later, on March 23, 2021, Gloria petitioned the probate court to
vacate the order creating the conservatorship, along with all subsequent orders
“emanating” from the conservatorship. The court denied the petition, and she appeals.
Through a myriad of disjointed arguments, Gloria challenges the probate court’s order
striking her petition to vacate all the orders in this conservatorship, including the
establishment of the conservatorship and appointment of Wilson as the conservator. We
affirm.
2
A. Background History of the Parties.
Thomas is a wealthy nonagenarian, having amassed more than $40 million in
various assets, which were held by TW Tedesco Properties, L.P., a California limited
partnership (Tedesco Properties).2 (White v. Wear, supra, 76 Cal.App.5th at pp. 27-28.)
In 1988, he and his late wife created an estate plan to benefit their three daughters, Laura
White, Sandra Kay, and Julie Bas, and their grandchildren. Part of the estate plan
included the creation of the living trust and W. Mae, LLC, a California limited liability
company (W. Mae). (Id. at pp. 28-29.)
After the death of his first wife, on March 25, 2007, Thomas married Gloria (nee
Basara) who had two daughters from a prior relationship, Debra Wear (aka Debbie
Basara Wear, herein Wear) and Wendy Basara (Wendy). Since both Thomas and Gloria
1 On July 29, 2022, we reserved ruling for consideration with this appeal on respondent Wilson’s request for judicial notice filed July 11, 2022. We have reviewed the request and appellant’s opposition. The request is granted. We take judicial notice of the opinion in Tedesco v. White (June 15, 2022, G059883) [nonpub. opn.] (Tedesco III, supra, G059883). (Evid. Code, §§ 452. (d), 459.) Separately, on this court’s own motion and to compile a coherent narrative, we take judicial notice of the records and our prior opinions in: Conservatorship of Estate of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.], mod. Oct. 7, 2019 (Tedesco I, supra, E070316); Tedesco v. White (Sept. 19, 2019, E069438) [nonpub. opn.] (Tedesco II, supra, E069438); White v. Wear (2022) 76 Cal.App.5th 24; and White v. Davis (2023) 87 Cal.App.5th 270. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) “It is well accepted that when courts take judicial notice of the existence of court documents, the legal effect of the results reached in orders and judgments may be established.” (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 185.)
2 Thomas was born on April 27, 1926. On December 31, 2005, his estate was valued at $40,474,997. (White v. Wear, supra, 76 Cal.App.5th at p. 27, fns. 1 & 2.)
3 entered the marriage with multimillion-dollar estates, they executed prenuptial and
postnuptial agreements. (White v. Wear, supra, 76 Cal.App.5th at p. 28.) Also, “[t]here
were extensive discussions regarding Thomas’s residence. According to Thomas’s
family/estate plan attorney Burton A. Mitchell (Mitchell), the prenuptial agreement and
modifications to Thomas’s estate plan grant Gloria a life estate in Thomas’s residence
[for her lifetime] should she survive him; however, the documents do not bequeath to her
fee title to his interest in the residence.” (White v. Davis, supra, 87 Cal.App.5th at
p. 277.)
“On February 11, 2011, Thomas appointed his three daughters as his true and
lawful attorneys to act in any lawful way for him and his name, place, and stead, and for
his use and benefit as authorized. Thus, Thomas’s daughters were authorized to transfer
trust assets and file any necessary tax returns, and if a conservatorship was needed, they
were nominated to serve, acting by majority vote. (White, supra, 76 Cal.App.5th at
p. 28.) Following the creation of W. Mae (Sept. 2012), on December 26, 2012, Thomas
gifted the living trust’s general partner’s interest in Tedesco Properties to W. Mae.3
(Tedesco I, supra, E070316) On or about February 20, 2013, Thomas’s daughters
authorized Wells Fargo Bank, N.A. (Wells Fargo) to change the signer on the Tedesco
Properties’ account. (Ibid.)” (White v. Davis, supra, 87 Cal.App.5th at p. 277.) The gift
3 Pursuant to Mitchell’s letter to Thomas, dated December 12, 2012, the gift documents were signed but left undated, “‘so that [the law firm] could date them to be effective once everyone had signed them.’” (White v. Davis, supra, 76 Cal.App.5th at p. 277, fn. 5.) Mitchell’s paralegal “‘filled in the date by hand’” to read December 26, 2012, on each signature page. (Ibid.)
4 documents had been sent to Capitol Services for filing with the California Secretary of
State on January 3, 2013; however, on March 28, 2013, Mitchell’s paralegal was
informed that they were rejected because the Secretary of State “‘now require[d] not only
the signature of the new general partner, but also the signature of the former general
partner.’” (White v. Davis, supra, 87 Cal.App.5th at p. 277.) “Thus, the paralegal revised
the form to add a signature block for Thomas, as former general partner, and faxed the
revised form to him for signature. Thomas signed the revised form and returned it on
April 4, 2013. The amendment to the certificate of limited partnership, which evidences
the transfer of the living trust’s general partner’s interest in Tedesco Properties to
W. Mae, was filed with the Secretary of State that same day, April 4, 2013.” (White v.
Davis, supra, 87 Cal.App.5th at p. 277.)
“After the gift documents were filed with the Secretary of State, Thomas
underwent bladder surgery on April 15, 2013, and back surgery on April 30. On June 5,
2013, Thomas resigned as trustee of the living trust, and his three daughters began to
serve as successor cotrustees. (White, supra, 76 Cal.App.5th at pp. 28-29.) Twenty-four
days later, on June 29, Thomas signed an amendment to the living trust, prepared by
Mitchell, which made the living trust irrevocable and unmodifiable without the written
consent of Thomas and his daughters. (Id. at p. 29.) Thomas underwent a second bladder
5 surgery on July 30, 2013.”4 (White v. Davis, supra, 87 Cal.App.5th at pp. 277-278.)
“During the first six years of Thomas and Gloria’s marriage, no issues arose
regarding Thomas’s estate plan, which favored his biological heirs. However, by
fall 2013, after undergoing multiple surgeries, Thomas had become intellectually
impaired and susceptible to being unduly influenced. He ended his decades-long
relationship with Mitchell, who stated: ‘“[I]t was very difficult to communicate with
[(Thomas)], as Gloria seemed to be blocking the calls. When [Mitchell] called, either
[Thomas] was never there or someone else was on the phone. [Mitchell] related that he
heard other voices in the background, particularly Gloria, telling Thomas what to say
[and Mitchell] ha[d] seen scripts written for [Thomas] regarding what he [was] to say to
4 Gloria continues to advance facts—Thomas’s daughters’ alleged fraudulent transfer of control over the trust and misappropriation of personal funds—which she asserts “have been omitted from every opinion and order, and because they invoke the duty of the court to scrupulously examine [Wilson’s and Thomas’s daughters’] conduct.” While Gloria’s counsel must zealously advocate on her behalf, the probate court’s orders are “‘“presumed correct; all intendments and presumptions are indulged to support [it]; conflicts in the declarations must be resolved in favor of the prevailing party, and the [probate] court’s resolution of any factual disputes arising from the evidence is conclusive.”’ [Citations.] Hence, we presume the [probate] court found in [respondents’] favor on “all disputed factual issues.” . . . “In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the [probate] court has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable.” [Citation.] “If the [probate] court resolved disputed factual issues, the reviewing court should not substitute its judgment for the [probate] court’s express or implied findings supported by substantial evidence.”’” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1115, fn. 9.) Gloria, however, does precisely what appellate courts may not do by looking only to the evidence favorable to her while ignoring the evidence supporting the probate court’s express and implied findings.
6 his attorney.”’ (White, supra, 76 Cal.App.5th at p. 29.) “Around the same time, ‘White
and her sisters were denied access to their father. A housekeeper . . . confronted Gloria
and said, “‘“You can’t keep the girls from seeing their dad. They’re not stupid!”’”
Gloria responded, “I don’t care.” Gloria told Thomas that his daughters were “being
bad” to her, blocked his communication with his family, and attempted to erase them
from his memory by removing [their] photographs [from the residence]. Gloria prepared
scripts[5] for Thomas to say to Mitchell or his daughters and caused him, for the first
time, to express a desire to leave 75 percent of his estate to Gloria and 25 percent to
charity.’ (Ibid.) Gloria further wanted outright ownership of Thomas’s residence.
(Tedesco I, supra, E070316.)” (White v. Davis, supra, 87 Cal.App.5th at p. 278.)
B. The Conservatorship.
“As Thomas’s memory took a ‘huge nose dive’ in 2013, he stopped paying bills
and taxes, resulting in significant penalties. On September 9, 2013, Dr. Ivor J. Nazareth,
a neurologist, evaluated Thomas and reported that he had ‘significant cognitive
impairment with a Mini Mental State Examination score of 23 out of 30.’[6] The doctor
opined that Thomas ‘is unable to make consistent and reliable rational decisions,
5 “Thomas was directed to tell Mitchell the following: ‘I have hired another law firm to represent me in regards to my conservatorship—I don’t want your firm to represent me in this matter’; ‘[h]ave my wife own the house outright. [¶] It simplifies things. [¶] I want Gloria to own this house outright’; and ‘[d]isinherit my children.’” (White v. Wear, supra, 76 Cal.App.5th at p. 29, fn. 6; see White v. Davis, supra, 87 Cal.App.5th at p. 278, fn. 6.)
6 “The mini mental state examination is a 30-point test that uses a ‘set of questions for screening cognitive function.’” (White v. Davis, supra, 87 Cal.App.5th at p. 278, fn. 7.)
7 especially when it comes to his health or handling any financial issues, even simple ones.
He needs total supervision.’ (Tedesco I, supra, E070316.) Concerned about Thomas’s
health and Gloria’s actions, on May 2, 2014, White petitioned for the appointment of a
conservator of Thomas’s person, and . . . estate.” (White v. Davis, supra, 87 Cal.App.5th
at pp. 278-279.)
On June 10, 2014, the probate court investigator met with Thomas concerning the
conservatorship. The investigator advised Thomas of his rights, including the right to a
jury trial. On October 17, 2014, Kenneth Jenkins (Jenkins) was appointed as the
guardian ad litem (GAL) for Thomas “with authority to investigate, retain, and discharge
counsel for Thomas’s protection.” (White v. Davis, supra, 87 Cal.App.5th at p. 279.)
“Jenkins opposed the appointment of attorney Mary Gilstrap as Thomas’s counsel on the
grounds a conflict of interest existed since Gloria’s attorney had recommended Gilstrap
to Thomas.” (Ibid.) Instead, Jenkins engaged David Humphrey, Jr. (Humphrey) to
represent Thomas.7 (Tedesco I, supra, E070316.)
7 At the same time, “Terence Nunan of Parker, Milliken, Clark, O’Hara & Samuelian (Parker Milliken) appeared in the action claiming to represent Thomas and seeking attorney fees for such representation. The probate court found ‘the attorney retainer agreement . . . executed by the then proposed conservatee [(Thomas) with attorney Nunan was] invalid’ because Thomas lacked the capacity to engage counsel. The court expressed concern ‘with regard to circumstances under which Nunan [had been] retained, particularly following [its] appointment of a [GAL] for the specific purpose of obtaining conflict-free counsel to represent the proposed conservatee. The [GAL] performed as directed and attorney Humphrey was selected for representation. It is unclear . . . what need or additional benefit was obtained by the retention (however questionable) of co-counsel.’” (Tedesco I, supra, E070316.)
8 “Undeterred by White’s petition for a conservatorship of Thomas’s estate, Gloria
and Wear continued to influence Thomas to change his estate plan [by isolating him from
his biological family]. Thus, on January 14, 2015, White applied for a restraining order
against Wear on the [basis] that she was ‘“scheming to sabotage [Thomas’s] relationship
with his daughters, attempting to have [Thomas] amend his estate plan to favor Gloria,
and trying to have [Thomas’s] daughters removed as trustees of the relevant trusts.”’ On
January 15, 2015, White obtained a temporary restraining order (TRO) against Wear
requiring her to refrain from discussing the issues of the conservatorship or Thomas’s
estate plan, or facilitating his access to any bank, accountant, attorney, or financial
planner regarding the conservatorship or his estate plan. However, because Wear did not
accept service of the TRO, service of process was not completed and, as a result, there
was no hearing on the restraining order.”8 (White v. Wear, supra, 76 Cal.App.5th at
pp. 29-30; see White v. Davis, supra, 87 Cal.App.5th at p. 279.)
“On March 3, 2015, Jenkins was relieved from his duties as Thomas’s GAL.
(Tedesco I, supra, E070316.) On June 15, 2015, after a contested court trial, the probate
court concluded a temporary conservator of Thomas’s estate was necessary because
8 “White also sought a restraining order against Wendy, [and o]n February 11, 2015, Wendy stipulated that she would not discuss within the presence of Thomas the conservatorship of his estate, his estate plan, or his financial affairs, and she would not take or accompany him or be present with any banker, accountant, attorney, financial planner, or any person for any reason related to his conservatorship, his estate plan, or the financial management of his affairs.” (White v. Wear, supra, 76 Cal.App.5th at p. 30, fn. 7; see White v. Davis, supra, 87 Cal.App.5th at p. 279, fn. 8.)
9 Thomas was mentally deficient and ‘“very susceptible to being unduly influenced.”’”9
(White v. Davis, supra, 87 Cal.App.5th at p. 279; see White v. Wear, supra,
76 Cal.App.5th at p. 30.) The court explained that Gloria had displayed “an inconsistent
pattern” as to whether Thomas lacked capacity, seemingly based on her “litigation
interests.”10 The court also found evidence of “undue influence,” i.e., Gloria
9 “The court opined that the case was ‘unusual’ because Thomas’s ‘needs are adequately met by existing estate planning documents prepared by the conservatee during the period of [his] full capacity.’ The court noted that Thomas’s lack of capacity was attested to by his treating physician, Richard G. Byrd, M.D., and neurologist Ivor J. Nazareth, M.D., and ‘clearly shown and confirmed by the very recent, credible, and compelling report of Geriatric Psychiatrist, David W. Trader, appointed by the court as [an Evidence Code section] 730 expert by stipulation of all parties.’ The court further noted that the appointment of a temporary conservator was warranted as ‘there is evidence from which a reasonable inference may be made that undue influence (or at least attempts at such) of [Thomas] has occurred through persons yet to be determined.’ More specifically, the court noted that ‘about one year ago[, on September 9, 2014,] (about the time, or soon after, this matter was commenced and after the capacity reports of Dr. Byrd and Dr. Nazareth were prepared)’ Thomas, accompanied by Gloria, attempted to withdraw $500,000 from [the Wells Fargo business] account . . . that was no longer under his control.” (White v. Wear, supra, 76 Cal.App.5th at p. 30, fn. 8; see White v. Davis, supra, 87 Cal.App.5th at p. 280, fn. 10.)
10 “The court is concerned that the evidence and admissions within objector Gloria Tedesco’s pleadings, reflect an inconsistent pattern as to whether she is accepting her obligations under the health care [power of attorney] to provide the assistance needed by the proposed conservatee. Her position has changed as to whether the proposed conservatee is competent to make his own decisions for health care. One may infer from the evidence, that the inconsistencies are attributable to objector’s litigation interests rather than the best medical interests of the proposed conservatee.”
10 accompanying Thomas to the bank to withdraw $500,000 from an account no longer held
by him.11
On July 2, 2015, Thomas filed a demand for a jury trial on the petition for
conservatorship. However, 29 days later, he filed a competing petition for appointment
of David M. Wilson (Wilson) as temporary conservator of the estate. On August 10,
2015, the parties stipulated and agreed to the appointment of Wilson as permanent
conservator of the estate, and the Hon. James A. Cox entered the formal order on August
- (Tedesco I, supra, E070316.) The court later appointed independent counsel for
Thomas. (Ibid.) No one appealed the conservatorship order.
During the same time, Wear was facilitating Thomas’s communications with
Russell Davis (Davis) (Wear worked as his paralegal) “who repeatedly requested to be
appointed counsel for Thomas.”12 (White v. Wear, supra, 76 Cal.App.5th at p. 30.) Each
of Davis’s applications was denied by the probate court for the reason “that the ‘“history
11 “The appointment of a temporary conservator is further warranted as there is evidence from which a reasonable inference may be made that undue influence (or at least attempts at such) of the proposed conservatee has occurred through persons yet to be determined.”
12 In June 2016, Thomas requested that Davis be appointed as independent counsel, but the probate court appointed Jeremy J. Ofseyer on August 4, 2016. (White v. Wear, supra, 76 Cal.App.5th at p. 30, fn. 9.) By September 22, 2016, Ofseyer moved to withdraw as court-appointed counsel because Gloria objected to his representation, claiming a conflict of interest based on his meeting with her many years prior. (Ibid.) A second request to have Davis appointed as Thomas’s counsel was made; however, the court appointed Julia Burt on December 9, 2016. (Ibid.) Since Burt was thwarted from every effort to communicate with Thomas, and Gloria accused her of having a conflict of interest, Burt also moved to withdraw, and Kevin McKenzie was appointed on January 5,
- (White v. Davis, supra, 87 Cal.App.5th at p. 280, fn. 10.) On October 9, 2020, the court granted McKenzie’s motion to withdraw as Thomas’s counsel.
11 of this case reflects a crucial need that independent counsel represent [Thomas], meaning
that counsel be not related with or retained by family members who may have or might
be involved in influencing the conservatee and retained counsel.”’” (Ibid.) The court
further warned Davis that if he “‘continues to contact a person under conservatorship, it
may start fitting under the elder abuse statute, and there may be injunctive relief of
another type, which, if violated, would then lead to a misdemeanor on behalf of an
experienced member of the bar.’” (White v. Davis, supra, 87 Cal.App.5th at p. 280.)
C. The Ongoing Litigation Challenging the Conservatorship.
“Despite the existence of the conservatorship and the probate court’s warning, in
2017, Gloria, Wear, and [Davis] pursued legal action with the end goal of allowing
Thomas to gain control over his estate and all financial decisionmaking. They initiated
civil actions that were not authorized by Wilson, sought the appointment of a GAL[13] to
13 Stephen G. Carpenter (Carpenter) sought permission to act as Thomas’s GAL. (Tedesco I, supra, E070316.) “Carpenter is a retired bank executive who ‘has known the conservatee for about 13 years,’ is a ‘good friend,’ and ‘is concerned about the well-being of the conservatee.’ However, according to Wilson, Carpenter ‘came into [Thomas’s] life after [meeting] his wife Gloria.’ Shortly after Wilson was appointed conservator, ‘Carpenter and [Gloria’s] daughter, Debbie [Wear], had [Thomas] call [Wilson] and request an immediate meeting[; however,] it was really. . . Carpenter and Ms. [Wear] requesting the meeting, and they wanted information relating to the status of the case.’” (Ibid.)
12 act on behalf of Thomas, engaged the services of Herzog, Yuhas, Ehrlich & Ardell[14]
and petitioned for termination of the conservatorship. (Tedesco I, supra, E070316.)”
(White v. Davis, supra, 87 Cal.App.5th at p. 280.) In March 2017, Gloria moved to
disqualify Judge Cox on the grounds he made comments at a December 2016 hearing that
“cause[d her] ‘to doubt that [he] would be able to be impartial’”15 and he provided advice
to the parties in violation of Code of Civil Procedure section 170.1, subdivision
(a)(2)(A).16 On March 21, 2017, Judge Cox recused himself under Code of Civil
14 The law firm of Ian Herzog (Herzog) and Evan D. Marshall (Marshall). “On June 2, 2017, Thomas signed an attorney-client agreement wherein he agreed that of the assets reclaimed, Herzog’s firm would recover their costs first, then their legal fees at the following rates: 33½ percent of any recovery made before filing suit; 40 percent of any recovery made after filing suit; and 50 percent in the event of an appeal.” (White v. Davis, supra, 87 Cal.App.5th at p. 280, fn. 11.)
15 “. . . I would like to encourage everybody in this case to put down their hatchets and give Mr. Tedesco some peace. Let him restore relationships with his children and his grandchildren. [¶] There have been hearings, recent hearings, indicating that there has been continued efforts to isolate him from his children and his grandchildren. That should stop. All this needs to stop. [¶] There is a matter—there are orders in place that protect him. And if this stops, these great expenses will be decreased dramatically, dramatically, including the cost of the conservator and his fees. . . . [¶] . . . [¶] This original case was started by the children with good cause. I’ve seen enough to know that they filed their papers in good faith. [¶] . . . [¶] The hatchets are continuing by Mrs. Tedesco. And I think she’s mistaken . . . .”
16 “And my only thought is that if this litigation is going to continue, in my opinion the way to bring it is for the interested person to bring a petition for substituted judgment, and then we’ll just have to call the doctors back, have them review everything and go through it and determine whether he has testamentary capacity to change it. [¶] That would be, the way I think, of readdressing the issue of capacity to do an estate plan. [¶] Dr. Bassanelli’s report doesn’t seem to indicate anything that would change any indication or belief there’s a reason to change the issue as to the conservatorship. [¶] But, anyway, I just wanted to give you that thought.”
13 Procedure, section 170.1, subdivision (a)(6)(A)(iii), which provides for disqualification if
for any reason, a “person aware of the facts might reasonably entertain a doubt that the
judge would be able to be impartial.” The conservatorship was reassigned to the Hon.
Thomas H. Cahraman.
Gloria, Wear, and Davis also interfered with Thomas’s relationship with Burt, his
appointed counsel, (see fn. 12, ante) causing her to move to withdraw. (White v. Wear,
supra, 76 Cal.App.5th at p. 31, fn. 10.) In support of Burt’s motion, on or about July 5,
2017, Davis prepared and filed a declaration from Thomas that stated: “‘I am very upset
and angry that my life and liberty have been wrongfully taken from me. I worked hard
all my life and have accumulated a sizeable estate. Now my daughters believe they are
entitled to my estate, and they have curtailed my freedom and life in their misguided
attempt to save estate taxes and to thwart my attempts to change my estate plan. My
daughters have in effect imprisoned me and all I think about every day is getting rid of
this conservatorship. It has robbed me of my happiness.’ Burt and Wilson retained the
Hon. Reva G. Goetz, Judge (Ret.), to observe a meeting on September 7, 2017, between
Thomas, Burt, and Wilson. According to Judge Goetz, Thomas was accompanied by
Gloria, several attorneys, and a ‘body guard.’ Despite his July 5, 2017, declaration,
Thomas stated that he did not know that Burt had asked to be relieved as his court-
appointed counsel, he did not know the names of his privately retained attorneys
[(nonappointed counsel)], he did not remember signing an engagement letter with
Herzog’s firm, and his attorneys have not told him ‘anything’ about the case.” (White v.
Davis, supra, 87 Cal.App.5th at p. 281.)
14 Carpenter, represented by nonappointed counsel, repeatedly sought permission to
act as Thomas’s GAL. (Tedesco I, supra, E070316.) The probate court denied the
repeated requests and identified nonappointed counsel’s disingenuous tactics at a
June 2017 hearing, stating, “that [Davis] was using Carpenter in an ‘effort to be the
lawyer, in effect, for [Thomas].’” (Ibid.) Without regard for the probate court’s decision,
Carpenter (through nonappointed counsel) procured his appointment as Thomas’s GAL
in a separate civil action on October 17, 2017; no notice was provided to Wilson or the
probate court. (Ibid.) “In response to the continued attempts to interfere with court-
appointed counsel’s relationship with Thomas, in 2018, Wilson petitioned the probate
court for, inter alia, instructions/order affirming his power to initiate and maintain
litigation on Thomas’s behalf and barring any counsel not appointed by the probate
court . . . from representing Thomas or initiating and pursuing litigation on his behalf.”
(White v. Davis, supra, 87 Cal.App.5th at p. 281.) The petition was granted, “and on
September 19, 2019, we affirmed the decision. (Tedesco I, supra, E070316.) In doing
so, we noted that the ‘driving force’ behind the legal actions initiated outside the
conservatorship ‘appears to be Gloria, her daughters, and nonappointed counsel (who
lacked independence because they were assisted by Gloria’s daughter, [Wear], paralegal
to [Davis]). Their motivation therefore is suspect.’” (White v. Davis, at p. 281.)
Despite our decision in Tedesco I, supra, E070316, Gloria, Wear, nonappointed
counsel, and Carpenter have continued to interject themselves in Thomas’s affairs under
the assertions that (1) he never wanted a conservatorship, (2) White and her sisters
breached their fiduciary duties and fraudulently transferred Thomas’s wealth to
15 themselves, and (3) neither Wilson nor any court-appointed independent counsel are
taking any actions to recover his misappropriated assets. (White v. Wear, supra,
76 Cal.App.5th at p. 31; see Tedesco I, supra, E070316 & Tedesco II, supra, E069438.)
On September 28, 2018, nonappointed counsel and Carpenter, allegedly on
Thomas’s behalf, moved to disqualify Judge Cahraman on the grounds that he was
“biased and/or prejudiced against the conservatee and/or his private attorneys . . . .” On
October 11, 2018, Judge Cahraman filed an order striking the motion as untimely and
failing to disclose any legal grounds for disqualification. However, six days later, he
found his order to be untimely and, therefore, he was deemed disqualified by operation of
law. The matter was reassigned to the Hon. John G. Evans.
Additionally, nonappointed counsel, Carpenter, and Wear initiated an Orange
County action, which sought to remove Thomas’s daughters as cotrustees of the living
trust and to challenge the third amendment to that trust.17 (Tedesco II, supra, E069438;
Tedesco III, supra, G059883.) The Orange County probate court dismissed the petition,
and nonappointed counsel appealed on behalf of Thomas, Carpenter, and Wear.
(Tedesco III, supra, G059883.) On June 15, 2022, the Court of Appeal, Fourth Appellate
District, Division Three, upheld the lower court’s orders and rejected several of
appellants’ arguments, including the claim that the conservatorship and all subsequent
17 The third amendment made the living trust irrevocable and not subject to alteration or amendment absent the unanimous vote of the trustor (Thomas) and the acting trustees (White, Kay & Bas). (White v. Wear, supra, 76 Cal.App.5th at pp. 28-29.)
16 orders in the conservatorship are void. (Ibid.) “[T]he California Supreme Court denied
review on October 12, 2022.” (White v. Davis, supra, 87 Cal.App.5th at p. 285.)
Moreover, nonappointed counsel, Gloria, and Wear have continued to unduly
influence Thomas to change his estate plan as evidenced by the creation of a purported
amendment to the living trust (2020 amendment), which was signed on January 20, 2020,
without notice to or approval of Wilson, the probate court, or the living trust’s
cotrustees.18 (White v. Wear, supra, 76 Cal.App.5th at p. 31.) “The purported
amendment provides that Thomas is disinheriting his biological [family members] in
favor of Gloria and her daughters, Wear and Wendy.” (Ibid.) On March 12, 2020, Davis
notified Thomas’s daughters and their attorney “that Thomas had changed the designated
beneficiaries of the Living Trust[, such that] 75 percent of the entire trust estate is to be
distributed to Gloria upon Thomas’s death, or to Gloria’s daughters if Gloria does not
18 The 2020 amendment, in part, provides: “‘This 2020 Amendment to the Amended and Restated Thomas S. Tedesco Living Trust is made this 20th day of January, 2020, and executed by THOMAS S. TEDESCO as Trustor in order to make revisions to the Thomas S. Tedesco Living Trust. “‘On March 27, 2019, I, Thomas S. Tedesco, executed a document to revoke my Trust in order to nullify the Third Amendment to my Trust which purportedly was executed by me but is not in accord with my wishes. I never agreed or approved of the Third Amendment and, if I did sign it, it was never explained to me by my attorney or my daughters. It was signed by me at the request of one of my daughters. The Third Amendment does not reflect my intent. Therefore, my intent was to revoke the trust in order to have my estate be distributed in accordance with my will as amended. “‘I have been advised that I may not have the power to revoke my Trust. Therefore, in the event that such revocation is not allowed and, to the extent that I am able to do so, I hereby amend my Trust in order to be sure that my wishes concerning my estate after my death are honored.’” (White v. Wear, supra, 76 Cal.App.5th at p. 31, fn. 12.)
17 survive Thomas[, and] that Carpenter and Cynthia Finerty would serve as cotrustees.”
(Id. at p. 32.)
D. The Petitions for Elder Abuse Restraining Orders.
On April 27, 2020, White, as cotrustee of the living trust, filed applications for
Elder Abuse Restraining Orders (EAROs) against Carpenter, Gloria, Davis, Herzog,
Marshall, and Wear (collectively referred to as defendants) based on their continued
efforts to unduly influence Thomas to change his estate plan for their benefit. (White v.
Wear, supra, 76 Cal.App.5th at p. 31, fn. 11; White v. Davis, supra, 87 Cal.App.5th at
p. 282.) White requested that each defendant be restrained from financially abusing
Thomas, contacting him (either directly or indirectly), being within 100 yards of him,
living or being in his home, and making any change, or facilitating any changes to his
estate plan, including taking him to any attorney, accountant, financial planner, or banker,
or by acting (or purporting to act) as his attorney or representative. (White v. Wear,
supra, 76 Cal.App.5th at p. 31; White v. Davis, supra, 87 Cal.App.5th at p. 282.)
18 Prior to the hearing on the merits of the EAROs, defendants (except for Wear)19
successfully challenged Judge Evans under Code of Civil Procedure section 170.6, and
the matter was reassigned to the Hon. Kenneth J. Fernandez. (White v. Davis, supra,
87 Cal.App.5th at p. 282.) Defendants then filed separate anti-SLAPP motions on the
grounds, inter alia, the applications for EAROs arise from protected activities involving
the exercise of constitutionally protected rights of petition and freedom of speech, and
improperly seek to interfere and adjudicate issues raised in the Orange County Superior
Court case (In re the Thomas S. Tedesco Living Trust, No. 30-2019-01078628-PR TR
CJC). (White v. Davis, at p. 283.) On March 22, 2021, the trial court denied each anti-
SLAPP motion on the grounds that “‘[n]othing here involves a protected activity,’” and
White has “‘made a prima facie factual showing sufficient to sustain a favorable
judgment as to all six [defendants].’” (Id. at p. 284.) Defendants appealed and we
affirmed. (Id. at p. 294.)
19 Wear “did not file any response or paperwork, nor did she appear at the hearing. Rather, on July 29, 2020, the Herzog firm (Marshall) filed a document denominated as ‘NOTICE OF NON-SERVICE,’ which alleged that Wear had ‘not been served with process’ and, in the event she is served, she would file a special motion to strike under Code of Civil Procedure section 425.16.” (White v. Wear, supra, 76 Cal.App.5th at p. 32.) Thus, on July 30, 2020, the trial court (Judge Evans) granted the EARO against Wear. “Wear was ordered to not abuse (financially or otherwise) or contact (directly or indirectly) Thomas; to not make, or facilitate, any change to Thomas’s estate plan; to stay at least 100 yards away from [Thomas]; to move out and not return to [Thomas’s] home in Indian Wells . . . ; and to not own, possess, have, buy or try to buy, receive or try to receive, or in any other way get guns, other firearms, or ammunition.” (Id. at pp. 33-34.) We affirmed the order except for the prohibition “from owning, possessing, having, buying or trying to buy, receiving or trying to receive, or in any other way getting guns, other firearms, or ammunition.” (Id. at p. 42.)
19 E. The Petition to Vacate All Orders in the Conservatorship.
On March 23, 2021, Carpenter and Gloria filed a first amended verified petition to
vacate all the orders in this conservatorship, including the establishment of the
conservatorship and appointment of Wilson as the conservator. Nonappointed counsel
(Marshall) verified the petition. According to petitioners, the order conserving Thomas is
void because he was not given the rights and advisements required by Probate Code
sections 1822, 1827, and 1828, he did not waive his right to a jury trial, he did not
authorize the stipulation for the order conserving him pursuant to Code of Civil
Procedure section 664.6, and Judge Cox was disqualified after entering the order
conserving Thomas. The petition alleges a pattern of fraud, deceit and elder abuse
committed by Thomas’s daughters, their lawyers, Wilson, and Wilson’s lawyers, to
prevent Thomas from having independent counsel, adjudicating the validity of the
conservatorship, or securing a hearing on the merits of his civil claims.
The cotrustees of the trust demurred on the grounds the petition failed to state a
cause of action, “preclusion under law of the case,” and Gloria and Carpenter lack
standing. Wilson moved to strike the verified petition and to disqualify nonappointed
counsel from representing any party in this matter or any substantially related proceeding.
On June 17, 2021, following a hearing, the probate court struck the petition on the
grounds it was time-barred, the parties lacked standing, and each basis in support of the
petition had been litigated, determined against petitioners’ favor, affirmed on appeal, and
are now law of the case. Moreover, the court stated that nonappointed counsel may not
represent Thomas “directly or indirectly, and specifically by representing . . . Carpenter
20 and/or Gloria . . .” The court further sustained the demurrer to the petition, without leave
to amend.
On August 17, 2021, nonappointed counsel, on behalf of themselves, Thomas,
Carpenter, and Gloria appealed the orders of the probate court. Subsequently, this court
dismissed the appeal under California Rules of Court, rule 8.140, for failure to timely
deposit costs for preparing the record. Appellants’ motion to vacate the dismissal was
denied as to Thomas, Carpenter, and nonappointed counsel, but granted as to Gloria’s
“appeal of the order entered June 17, 2021, denying the First Amended Petition to Vacate
Order Establishing Conservatorship etc., without prejudice to the parties’ further
discussion in their briefs of whether this court’s holding in case No. E070316 pertains to
Gloria.”
A. Standard of Review.
“A motion to strike a pleading under Code of Civil Procedure section 436 is
reviewed for abuse of discretion.” (Pacific Gas and Electric Co. v. Superior Court
(2006) 144 Cal.App.4th 19, 23.) A trial court’s decision denying or granting a motion to
vacate an order is reviewed for abuse of discretion. (See Austin v. Los Angeles Unified
School Dist. (2016) 244 Cal.App.4th 918, 929; see Hudson v. Foster (2021)
68 Cal.App.5th 640, 661 [under limited circumstances, a probate court order denying a
motion to vacate on equitable grounds is appealable; reviewed for abuse of discretion].)
The appellate court shall reverse the actions of the lower court only where no reasonable
basis for the action is shown and where in its exercise, the court exceeds the bounds of
21 reason under the circumstances. (Conservatorship of Farrant (2021) 67 Cal.App.5th
370, 376 [“‘“Discretion is abused whenever, in its exercise, the court exceeds the bounds
of reason, all of the circumstances before it being considered. The burden is on the party
complaining to establish an abuse of discretion . . . .”’”].)
B. Analysis.
In challenging the probate court’s order denying her petition to vacate all the
orders in this conservatorship, Gloria contends the following: (1) the denial of a hearing
on the validity of the conservatorship—coupled with the failure to afford independent
representation for Thomas—is per se error, voiding all orders and appellate opinions, and
requiring the dismissal of the conservatorship; (2) the conservatorship is void ab initio
because there is no valid stipulation, Judge Cox was disqualified, and Thomas never
waived his right to a jury trial nor received the required advisements; (3) denial of
independent counsel “is a fundamental, statutory and structural error”;20 (4) Gloria has a
personal interest in seeking, and a statutory right to seek, vacatur of the conservatorship
and assertion of Thomas’s claims for violation of his civil rights; (5) Thomas’s current
competence is immaterial to the validity of the conservatorship; (6) nonappointed
20 Gloria also asserted that respondents failed to address the “other bases for invalidating the conservatorship,” including the right to seek removal of Wilson, the use of the conservatorship to prevent Thomas from exercising his trust rights, and the violation of the statutory rights of Gloria and Carpenter. However, for these assertions, she offers no authority and analysis. Because she fails to support her arguments with citations to supporting authority, the arguments are forfeited. (Estate of Cairns (2010) 188 Cal.App.4th 937, 949 [failure to provide argument or authority forfeits contention].) We will not act as counsel for a party to construct a proper and persuasive argument. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [appellate court not required to construct legal arguments for party].)
22 counsel’s representation is necessary and required; (7) disqualification of nonappointed
counsel was aimed at preventing the adjudication of Thomas’s rights; and (8) the probate
court may not disqualify nonappointed counsel in other proceedings.
- The February 2018 challenge to the conservatorship was previously
decided.
Gloria claims the denial of a hearing on the February 2018 motion challenging the
validity of the conservatorship—coupled with the failure to afford independent
representation for Thomas—is per se error, voiding all orders and appellate opinions, and
requiring the dismissal of the conservatorship. We disagree.
The issue regarding the failure to hold a hearing on the validity of the
conservatorship was the subject of a petition for writ of mandate in Tedesco v. Superior
Court (Laura White et al.) (Sept. 12, 2019, E073517). We denied Thomas’s petition to
direct the probate court to rule on his February 2018 motion to vacate the
conservatorship. Our denial was supported by our decision in Tedesco I, supra,
E070316, which affirmed the probate court’s order (1) terminating nonappointed counsel
from representing Thomas and (2) confirming the power and authority to initiate and
maintain litigation on Thomas’s behalf resides with the conservator and/or independent
court-appointed counsel only. Since our opinion voided all actions initiated by
23 nonappointed counsel, it consequently resolved the viability of the February 2018
motion.21 (See Tedesco I, supra, E070316.)
Because the issue was previously raised, and decided, in our prior opinion and our
prior order denying the petition for writ of mandate, it is final and constitutes res judicata.
(Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 591 [doctrine of res judicata
is applicable in probate proceedings].) As we previously stated in Tedesco I, supra,
E070316: “As an incapacitated person, Thomas lacks the legal ability to retain or direct
counsel. (Civ. Code, §§ 40, 2356, subd. (a)(3) [an agency terminates upon the
‘incapacity of the principal to contract’]; Prob. Code, § 1872, subd. (a); Conservatorship
of Chilton [(1970)] 8 Cal.App.3d [34,] 40-41; Sullivan v. Dunne [(1926)] 198 Cal. [183,]
193-194.) However, upon his request, the probate court must appoint independent
counsel.” The probate court did just that when it appointed Ofseyer on August 4, 2016,
Burt on December 9, 2016, and McKenzie on January 5, 2018. (See ante, fn. 12.)
Nonetheless, the evidence insinuates that Gloria did not favor any court-appointed
independent counsel that could not be controlled. With Wear’s assistance, Gloria
manipulated Thomas’s opinion of his counsel as demonstrated by his rejection of each
independently appointed attorney followed by his demand for the appointment of Davis
21 Gloria claims the unreasonable delay in hearing the motion to vacate the conservatorship constituted a due process violation which requires dismissal of the conservatorship. This contention is not supported by citations to the record or supporting authority—other than case law involving delays in criminal proceedings—and is accordingly forfeited. (See Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 629-630 [failure to support assertion with citation to authority forfeits claim].)
24 and nonappointed counsel. (Tedesco I, supra, E070316.) Specifically, when the probate
court refused to appoint Davis, Gloria and Wear influenced Thomas to retain
nonappointed counsel without court approval. (Ibid.) Accordingly, if Thomas has been
denied independent representation, then the evidence suggests that the denial is because
Gloria has rejected each independent court-appointed counsel in favor of counsel of her
or Wear’s choosing. (White v. Wear, supra, 76 Cal.App.5th at p. 30 [“[T]he ‘“history of
this case reflects a crucial need that independent counsel represent [Thomas], meaning
that counsel be not related with or retained by family members who may have or might
be involved in influencing the conservatee and retained counsel.”’”].)
- The conservatorship is not void ab initio.
Gloria contends the conservatorship is void ab initio because there is no valid
stipulation to the appointment of a conservator, Judge Cox was disqualified, and
Thomas’s statutory rights were violated. Since the record fails to support her contention,
we reject it.
a. Thomas stipulated to Wilson’s appointment.
Gloria claims the order appointing Wilson, based on the parties’ oral stipulation, is
void. Not so. The facts demonstrate that all parties were represented by counsel, placed
their stipulation on the record before the probate court, and Thomas’s counsel prepared
the order based on the stipulation.
Following a court trial on White’s petition for the appointment of a conservator of
Thomas and his estate, on June 15, 2015, the probate court appointed Jenkins as the
temporary conservator of Thomas’s estate only. (Tedesco I, supra, E070316.) Although
25 Thomas was represented by attorney Humphrey (whose services were engaged by
Jenkins), Thomas retained Nunan of Parker Milliken, who worked with Humphrey in
response to White’s petition for conservatorship. (Ibid.) On July 2, 2015, Nunan filed a
demand for a jury trial on White’s petition; trial was set for September 21, 2015.
However, 29 days later, Nunan (on behalf of Thomas) and cocounsel Humphrey filed a
competing petition for appointment of Wilson as conservator of his (Thomas’s) estate.
According to the competing petition, Thomas consulted his counsel and agreed to be
“subjected to a Conservatorship of the Estate with an independent professional fiduciary
in whom he has confidence that such fiduciary will act in his best interests.” Thomas,
“[b]y his signature,” nominated Wilson to “end the current contested proceeding.”
Nunan and Humphrey referred Wilson to Thomas.
Subsequently, on August 10, 2015, Thomas and his attorneys, Humphrey and
Nunan, informed the probate court that no party—including Gloria, the cotrustees,
Thomas’s grandchildren—objected to Thomas’s petition to appoint Wilson as
conservator. Because trial on Thomas’s petition was set for October 23, Gloria’s counsel
sought to expedite the hearing. In response, all counsel indicated they had the authority
to stipulate to the appointment of the general conservator “today.” Thus, all parties
stipulated on the record, and Thomas agreed, to the appointment of Wilson as conservator
of Thomas’s estate. Humphrey offered to prepare, and Nunan and Humphrey prepared,
the order confirming the stipulation to appoint Wilson; the order was filed on August 13,
- Contrary to Gloria’s claim, there was more than simply an “oral stipulation” to the
appointment of Wilson.
26 b. Judge Cox’s disqualification in 2017 did not void the order
appointing Wilson.
Gloria contends that Judge Cox’s disqualification in 2017 is evidence that his acts
in 2015 infected his rulings and Thomas’s consent or agreement since he was under the
perception the judge was not biased. We disagree.
Gloria moved to recuse Judge Cox on the grounds (1) he repeatedly accused her
“of undue influence, and of causing [Thomas] to be estranged from his family,” (2) Judge
Cox lived in an “adjoined townhouse next to very close friends of” White causing Gloria
to doubt his impartiality and to believe he “may have outside knowledge of the case,” (3)
he offered “unsolicited advice,” and (4) she believed he “has a terrible opinion of [her],
and is biased against [her].” To avoid the appearance of bias, Judge Cox recused himself.
(Code, Civ. Proc, § 170.1, subd. (a)(6)(A)(iii) [A judge shall be disqualified if “[a] person
aware of the facts might reasonably entertain a doubt that the judge would be able to be
impartial.”].)
According to Code of Civil Procedure section 170.3, subdivision (b)(4): “If
grounds for disqualification are first learned of or arise after the judge has made one or
more rulings in a proceeding, but before the judge has completed judicial action in a
proceeding, the judge shall, unless the disqualification be waived, disqualify himself or
herself, but in the absence of good cause the rulings he or she has made up to that time
shall not be set aside by the judge who replaces the disqualified judge.” Case law is split
on whether a disqualified judge’s prior rulings are void or voidable. (Compare Hayward
v. Superior Court (2016) 2 Cal.App.5th 10, 17 [“the rulings and orders issued by the
27 temporary judge are all void and must be vacated”]; Christie v. City of El Centro (2006)
135 Cal.App.4th 767, 780 [in dicta, the court concluded “whether void or voidable, the
order must be vacated”]; with Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415,
424 (Urias) [as a general rule, the actions of a disqualified judge are voidable, provided
that the disqualification issue had been properly raised by an interested party]; Betz v.
Pankow (1993) 16 Cal.App.4th 931, 940 (Betz) [“[T]he acts of a judge subject to
disqualification for cause are voidable rather than void.”].
Having considered the split in authority, we stand by the jurisdictional approach
adopted in Urias and Betz and conclude the orders issued prior to disqualification are
voidable rather than void. (Betz, supra, 16 Cal.App.4th at p. 940 [“We concur with
Witkin and those cases concluding that the acts of a judge subject to disqualification for
cause are voidable rather than void . . . .”].) We apply this interpretation of California
law to the facts of this case. Gloria’s motion to disqualify was based, primarily, on her
belief that Judge Cox was biased against her—not Thomas22—and possessed outside
22 When Gloria challenged Judge Cox, she cited to his various comments from the December 2016 hearing: “. . . there appears like there are probably conflicting interests between Mr. Tedesco and his wife, most of which appear to be created by your client [referring to Gloria Tedesco].” (The boldface was added in Gloria’s motion challenging Judge Cox.) Judge Cox continued: “But after reading Dr. Bassanelli’s report, now I understand the real reason all this is happening, and it’s, again, going back to what started this whole thing in the first place was Mrs. Tedesco’s desire with her husband falling into dementia problems to affect a change in the estate plan. [¶] It becomes clear to me after I see Dr. Bassanelli’s report. It fully discloses something that I didn’t think was the case.” Later in the hearing, the judge added: “. . . I would like to encourage everybody in this case to put down their hatchets and give Mr. Tedesco some peace. Let him restore relationships with his children and his grandchildren. [¶] There have been hearings, recent hearings, indicating that there has been continued efforts to [footnote continued on next page]
28 knowledge about the case. However, her “belief” rested on speculation. Except for her
declaration, nothing in the record supports her claims of bias or ex parte communications.
Gloria’s reliance on Giometti v. Etienne (1934) 219 Cal. 687, 688-689 [justice was
disqualified because he was related to petitioner’s counsel], and Christie v. City of El
Centro (2006) 135 Cal.App.4th 767, 776-780 [judge was disqualified because he
communicated with prior disqualified judge immediately prior to ruling on the motion]
does not assist her. In both cases, the grounds for disqualification were readily apparent
from the record; here, they are not.
Moreover, while parties are entitled to an impartial judge, “opinions formed by the
judge on the basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible. Thus, judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” (Liteky v. U.S. (1994) 510 U.S. 540, 555.)
isolate him from his children and his grandchildren. That should stop. All this needs to stop. [¶] There is a matter—there are orders in place that protect him. And if this stops, these great expenses will be decreased dramatically, dramatically, including the cost of the conservator and his fees. . . . [¶] . . . [¶] This original case was started by the children with good cause. I’ve seen enough to know that they filed their papers in good faith. [¶] . . . [¶] The hatchets are continuing by Mrs. Tedesco. And I think she’s mistaken— [¶] . . . [¶] —in her understanding and the things that she’s telling her husband.” (Again, the boldface was added in Gloria’s motion challenging Judge Cox.) Judge Cox’s statement was not made in isolation. Rather, it was based on evidence that had been presented to the court. Even if this statement suggests a bias against Gloria, it does not support a bias against Thomas, the conservatee.
29 “Neither strained relations between a judge and an attorney for a party nor ‘[e]xpressions
of opinion uttered by a judge, in what he [or she] conceived to be a discharge of his [or
her] official duties, are . . . evidence of bias or prejudice.’” (Roitz v. Coldwell Banker
Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724.)
In short, Gloria has not established good cause for voiding Judge Cox’s prior
orders.
c. The alleged violation of statutory rights.
Gloria contends Thomas’s statutory rights were violated because he never waived
his right to a jury trial nor received the necessary disclosures under Probate Code
sections 1827 and 1828. Assuming, without deciding, the probate court failed to comply
with the statutory procedures, the conservatorship order is not void, but voidable because
the court had fundamental jurisdiction over the parties and the subject matter. “We have
described courts that violate procedural requirements . . . as acting ‘“in excess of
jurisdiction.”’ [Citation.] Because a court that acts in excess of jurisdiction still has
‘jurisdiction over the subject matter and the parties in the fundamental sense’ [citation],
any such act is ‘valid until set aside, and parties may be precluded from setting it aside by
such things as waiver, estoppel, or the passage of time’ [citation]. In contrast to errors
concerning a court’s fundamental jurisdiction, ‘[e]rrors which are merely in excess of
jurisdiction should be challenged directly . . . and are generally not subject to collateral
attack once the judgment is final . . . .’” (Kabran v. Sharp Memorial Hospital (2017)
2 Cal.5th 330, 339-340.) The time to challenge the conservatorship order, a voidable
order, has long since passed. (Lee v. An (2008) 168 Cal.App.4th 558, 564 [“‘Errors
30 which are merely in excess of jurisdiction should be challenged directly, . . .’ and
generally are not subject to collateral attack once the judgment is final in the absence of
unusual circumstances which prevented an earlier, more appropriate attack.”].)
Moreover, Gloria is estopped from challenging the conservatorship order given
her prior acquiescence in its creation. Neither she nor Thomas—including Humphrey
and Nunan (Thomas’s privately retained counsel)—objected to the procedures used by
the probate court. Rather, they fully participated in the proceedings. Given their
acquiescence in the stipulation for the appointment of Wilson, the circumstances warrant
the application of principles of estoppel and res judicata to preclude Gloria from
challenging the probate court’s action. (Conservatorship of O’Connor (1996) 48
Cal.App.4th 1076, 1087-1088, 1090, 1092 [a party’s conduct that manifests consent to
the probate court’s procedure in appointing conservator estops the party from challenging
the validity of the appointment].)
- Thomas was not denied independent counsel.
Gloria asserts that Thomas was denied his fundamental, statutory right to
independent counsel. Not so.
As a conservatee, Thomas’s right to independent counsel is not absolute. Rather,
counsel must be approved by the probate court. (Prob. Code, § 1872, subd. (a) [“Except
as otherwise provided in this article, the appointment of a conservator of the estate is an
adjudication that the conservatee lacks the legal capacity to enter into or make any
transaction that binds or obligates the conservatorship estate.”]; Conservatorship of
Chilton (1970) 8 Cal.App.3d 34, 40 [affirming the trial court’s denial of an award of
31 attorney fees where a conservatee signed a retainer agreement when she had no capacity
to enter into a valid contract employing petitioner as her attorney].) Thomas was
provided independent counsel when the court appointed Ofseyer, then Burt; however,
both sought to be relieved as Thomas’s counsel based on Gloria’s or nonappointed
counsel’s interference in the conservatorship and their attorney-client relationship with
Thomas. (Tedesco I, supra, E070316.) In 2018, the court appointed McKenzie as
Thomas’s independent counsel, but McKenzie lost his independence when he allowed
nonappointed counsel—introduced to Thomas via Gloria or Wear—to dictate what he
(McKenzie) would advocate on Thomas’s behalf. Thus, McKenzie has also been
relieved as Thomas’s counsel.
As the probate court and this court have repeatedly stated, nonappointed counsel
have no authority to represent Thomas, and Thomas has no power to retain nonappointed
counsel, absent court approval. (Tedesco I, supra, E070316.) If anyone has denied
Thomas his right to independent counsel it is Gloria, Wear, and/or nonappointed counsel,
who challenge any court-appointed attorney failing to agree with their agenda.
- Gloria’s standing in the conservatorship.
Gloria contends she has standing to seek vacatur of the conservatorship and assert
Thomas’s claims for violation of his civil rights because (1) no prior order or appellate
opinion established her lack of standing, (2) Probate Code sections 1820, subdivision (a),
2622, 2651, and 2593 provide her statutory standing, (3) her personal interest as a
beneficiary under the trust provides standing, (4) attempts to disqualify her provide
standing, and (5) she possesses “next friend” standing. We agree that Gloria has standing
32 to petition for termination of the conservatorship; however, she has no standing to assert
Thomas’s claims for violation of his civil rights.
Gloria cites several statutes that provide standing for the spouse of a conservatee
to raise challenges in and to the conservatorship. Probate Code section 2622 provides
that a conservatee’s spouse “may file written objections to the account of the . . .
conservator, stating the items of the account to which objection is made and the basis for
the objection.” Probate Code section 2651 allows a conservatee’s spouse to petition the
court to have the conservator removed if the stated facts show cause for removal. Probate
Code section 2593, subdivision (a), provides: “The court, . . . on petition of any
interested person, when it appears to be for the best interests of the . . . conservatee or the
estate, may withdraw any or all of the powers previously granted pursuant to this article
or may impose restrictions, conditions, and limitations on the exercise of such powers by
the . . . conservator.” An “‘interested person’” includes a spouse. (Prob. Code, § 48,
subd. (a)(1).) Moreover, a conservatee’s spouse may petition to terminate the
conservatorship, but the petition must state facts showing the conservatorship is no longer
required. (Prob. Code, § 1861, subds. (a)(3), (b) [“(a) A petition for the termination of
the conservatorship may be filed by . . . [¶] . . . [¶] (3) The spouse . . . of the conservatee
. . . . [¶] (b) The petition shall state facts showing that the conservatorship is no longer
required.”].) Thus, we agree that Gloria, as Thomas’s spouse, has standing to petition for
termination of the conservatorship.
Regarding her standing to raise Thomas’s claims for violation of his civil rights,
Gloria argues she has “next friend” standing to challenge the probate court’s
33 “unconstitutional disenfranchisement.” We reject her argument because her premise is
flawed. Contrary to Gloria’s assertion, neither Wilson nor the court has deprived Thomas
of independent counsel. Rather, the evidence shows that the court’s attempts to appoint
independent counsel for Thomas have been repeatedly thwarted by Gloria, Wear, or
others who injected themselves into the attorney-client relationship, and made it
impossible for appointed counsel to remain independent and act solely for Thomas’s
benefit. After forcing independent court-appointed counsel to withdraw, Gloria, with the
help of Wear and others, then presented her handpicked attorneys (nonappointed counsel)
to the probate court for appointment. Recognizing that these attorneys may be
compromised, the court refused to appoint them as independent counsel for the reason
“that the ‘“history of this case reflects a crucial need that independent counsel represent
[Thomas], meaning that counsel be not related with or retained by family members who
may have or might be involved in influencing the conservatee and retained counsel.”’”
(White v. Wear, supra, 76 Cal.App.5th at p. 30.)
- The materiality of Thomas’s current competence.
Gloria contends Thomas’s current competence is immaterial to the validity of the
conservatorship. While Gloria cites Conservatorship of Heather W. (2016) 245
Cal.App.4th 378, 384, for the proposition that “the critical issue here is [the
conservatee’s] fundamental right to decide who hears the evidence to make that finding—
a judge or a jury,” she fails to offer any argument or analysis in support of her claim.
We, therefore, deem the issue forfeited. (See Estate of Cairns, supra, 188 Cal.App.4th at
p. 949.) Even if we were to reach the merits, her claim fails because it rests on the false
34 premise that the conservatorship was void ab initio. (See discussion II.B.2, ante.)
Moreover, Thomas’s current competence is relevant to a petition to terminate the
conservatorship. (Prob. Code, §§ 1861 [petition for termination of conservatorship],
1863, subd. (b)(1)(B) [conservatee must be produced at the hearing unless unable to
attend “by reason of medical inability”], 1863, subd. (c) [the probate court assesses the
conservatee’s capacity and determines whether clear and convincing evidence supports
the continuation of the conservatorship].)
- Nonappointed counsel are disqualified from representing Thomas
and Gloria.
Gloria argues that nonappointed counsel are entitled to represent Thomas’s
interests because (1) they are acting on his wishes, (2) Thomas and Gloria have a right to
counsel of their choosing, (3) McKenzie, court-appointed counsel, endorsed every action
taken by nonappointed counsel, (4) Thomas and Gloria shared a common desire to end
the conservatorship, remove his daughters, and restore his control over his estate,
(5) nonappointed counsel may not be barred from representing Gloria or Carpenter
because they also represent Thomas, (6) Thomas has a right to be represented in a motion
to disqualify nonappointed counsel, (7) this court lacks jurisdiction over nonappointed
counsel, and (8) Wilson has no standing to disqualify nonappointed counsel. As we
explain, we disagree.
As to Thomas, nonappointed counsel may not represent him unless approved and
appointed by the probate court. This issue has been previously raised, and decided, in
one of our prior opinions and an order denying the petition for writ of mandate, it is final
35 and constitutes res judicata. (Lazzarone v. Bank of America, supra, 181 Cal.App.3d at
p. 591.) Nonetheless, we reiterate, as an incapacitated person, Thomas lacks the legal
ability to retain or direct counsel; however, upon his request, the probate court must
appoint independent counsel. (Tedesco I, supra, E070316) Neither Wilson (as
conservator), nor Thomas’s family members (including Gloria), have the power to
replace a conservatee’s independent, court-appointed counsel with counsel they select
because to do so would “render [Thomas’s] right to independent counsel meaningless.”
(Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 447 [the rationale and need
for independent, court-appointed counsel exists when a conservator or other
representative proposes acts that would significantly affect a conservatee’s fundamental
rights].)
As to Gloria, under normal circumstances, the probate court may not restrict her
choice of counsel to represent her personal interests. However, this case does not involve
normal circumstances because nonappointed counsel were first retained by Thomas.
(White v. Davis, supra, 87 Cal.App.5th at p. 281; see Evid. Code, § 951 [attorney-client
relationship created upon initial consultation].) When nonappointed counsel requested
court approval of their retainer agreement or authorization to act as court-appointed,
independent counsel, the probate court rejected their request because they were
introduced to Thomas through Gloria or Wear and, thus, were not independent. The
purported retainer agreement was secured from Thomas through the imposition of undue
36 influence.23 Despite the court’s rejection of their request, nonappointed counsel have
repeatedly stated they represent Thomas and filed pleadings on his behalf.
Simultaneously, nonappointed counsel have represented Wear, Gloria, and Carpenter.
(White v. Davis, supra, 87 Cal.App.5th at pp. 274-275; White v. Wear, supra,
76 Cal.App.5th at p. 27.) Given the adverse interests of Thomas (on the one hand) and
Gloria, Wear, and Carpenter (on the other), nonappointed counsel are disqualified from
representing Gloria based on a conflict of interest. “‘Conflicts of interest broadly
embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client
are threatened by his [or her] responsibilities . . .’ to the attorney’s other interests.”
(Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1140; see People ex rel. Dept of
Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147 [“[T]he
most egregious conflict of interest is representation of clients whose interests are directly
adverse in the same litigation.”]; see also Cal. Rules of Professional Conduct, rules 1.7
and 1.9 [addressing conflicts of interest involving current and former clients].)
23 Although Gloria asserts that Thomas is “100% aligned” with her, given his incapacity, he was and is susceptible to undue influence by Gloria, Wear, and Carpenter whose self-interests (to become primary beneficiaries of Thomas’s estate) conflict with Thomas’s pre-incapacity interests (as expressed in his decades’ old estate plan). Also, as noted by Wilson, Gloria’s interests are directly opposing to Thomas’s interests based on her petition to vacate the conservatorship order, which was specifically requested by him and designed to protect him from undue influencers. Also, evidence introduced in the conservatorship shows that Gloria has repeatedly sought to disrupt Thomas’s relationship with his biological family to achieve her own personal financial interests and objectives. (White v. Wear, supra, 76 Cal.App.5th at p. 29; Tedesco I, supra, E070316.)
37 Given the existing conflict of interest, nonappointed counsel are disqualified from
representing Gloria without Thomas’s informed written consent.24 However, as a
conservatee, Thomas does not have the legal capacity to provide that informed consent.
(See Civ. Code, § 40; Prob. Code, §§ 1870, 1872, subd. (a).) Thus, the probate court
correctly ruled that nonappointed counsel may not represent Gloria.
- Disqualification of nonappointed counsel was not aimed at
preventing adjudication of Thomas’s rights.
Gloria claims the disqualification of nonappointed counsel was aimed at
preventing the adjudication of Thomas’s rights. Not so. This case involves a wealthy
conservatee, whose second wife has used the conservatee’s diminished capacity to
change his decades-old estate plan to favor herself and her family over his biological
family. (See White v. Wear, supra, 76 Cal.App.5th at p. 29; White v.
Davis, supra, 87 Cal.App.5th at p. 275; Tedesco I, supra, E070316.) If anyone has
interfered with the adjudication of Thomas’s rights, it has been Gloria (and Wear). When
the probate court appointed independent counsel, Gloria, Wear, or others injected
themselves into the attorney-client relationship, making it impossible for appointed
counsel to remain independent and act solely for Thomas’s benefit. It is worth repeating
that because nonappointed counsel were selected by Gloria, with the help of Wear and
others, the probate court refused to appoint them as independent counsel for the reason
24 Gloria is aware of the concept of disqualification based on a conflict of interest as she notes that Thomas’s prior attorney (Mitchell) could not continue to represent Thomas, post conservatorship, since he represented Thomas’s daughters.
38 “that the ‘“history of this case reflects a crucial need that independent counsel . . . not
[be] related [to] or retained by family members who may have or might be involved in
influencing the conservatee and retained counsel.”’” (White v. Wear, supra,
76 Cal.App.5th at p. 30.) Thus, disqualification of nonappointed counsel was based on
their lack of independence (as to Thomas) and their conflict of interests (as to Gloria).
- The probate court may disqualify nonappointed counsel in other
proceedings.
Gloria asserts the probate court may not disqualify nonappointed counsel in other
proceedings. We disagree. The probate court has exclusive concurrent jurisdiction over
any issue that affects the conservatorship and Thomas, as the conservatee. Under the
doctrine of exclusive concurrent jurisdiction, “when two or more courts have subject
matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the
exclusion of the others. [Citation.] The rule is based upon the public policies of avoiding
conflicts that might arise between courts if they were free to make contradictory
decisions . . . relating to the same controversy and preventing vexatious litigation and
multiplicity of suits.” (Shaw v. Superior Court (2022) 78 Cal.App.5th 245, 255.) Thus,
to the extent nonappointed counsel’s representation of Thomas or Gloria in other matters
impacts the conservatorship, nonappointed counsel may be disqualified from such
representation by the probate court.
39
The order is affirmed. Respondents are awarded their costs on appeal.
McKINSTER J. We concur:
RAMIREZ
P. J.
SLOUGH J.
40