Filed 9/19/19 Tedesco v. White CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THOMAS TEDESCO,

Plaintiff and Appellant,

v.

LAURA K. WHITE et al.,

Defendants and Respondents.

E069438

(Super.Ct.No. PSC1703036)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed.

Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog and Evan D. Marshall for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Adam F. Streisand, Nicholas J. Van Brunt and Valerie E. Alter for Defendants and Respondents.

Plaintiff and appellant Thomas S. Tedesco (Thomas), a conservatee, initiated this action (the first of two civil actions) in the Superior Court of Riverside County against his three daughters, defendants and respondents Laura White (Laura), Sandra Kay (Sandra), and Julie Bas (Julie), individually and as trustees of various trusts, his grandchildren, his bank, Wells Fargo Bank, N.A., (Wells Fargo), and his former attorneys, Burton A. Mitchell (Mitchell) and Jeffer, Mangels, Butler & Mitchell (Jeffer Mangels) (collectively defendants). The suit alleged cancellation/rescission of documents and transfers, breach of fiduciary duty, elder financial abuse, fraud and misrepresentation, negligence, conversion, and declaratory relief against defendants.

Because Thomas’s estate is under conservatorship, defendants moved to strike the complaint on the grounds Thomas could not retain counsel or initiate litigation without the conservator’s or the probate court’s permission. The civil court agreed, granted the motion to strike, and entered a judgment of dismissal.

 

Thomas appeals contending the civil court abused its discretion in striking his complaint based on his lack of capacity and denying his motion for new trial. He argues (1) defendants should have filed a special demurrer to challenge his lack of capacity, (2) the civil court should have appointed a guardian ad litem (GAL) for him, if necessary, (3) the probate court may not interfere with his right to secure independent counsel of his choice despite the existence of a conservatorship of his estate, and (4) the civil court erred in dismissing the action based on bad faith.

Because Thomas could not retain counsel or initiate this litigation without the probate court’s or the conservator’s, David M. Wilson (Wilson), permission, we reject Thomas’s contentions and affirm.

 

I. INTRODUCTION

Thomas is a wealthy nonagenarian, having amassed in excess of $30 million. He and his late wife Wanda Tedesco (Wanda) created an estate plan to benefit their three daughters, defendants and respondents Laura, Sandra, and Julie, and their grandchildren. Following Wanda’s death, Thomas married Gloria Basara (Gloria), who had two daughters from a prior relationship, Wendy Basara (Wendy) and Debra Wear (Debra). For the first six years of their marriage, no issues were raised regarding Thomas’s estate plan, which favored his biological heirs. However, in 2013, after undergoing multiple surgeries, Thomas became intellectually impaired and susceptible to being unduly influenced. He ended his decades long relationship with his family/estate plan attorney, Mitchell, limited contact with his daughters and, for the first time, expressed a desire to leave 75 percent of his estate to Gloria and 25 percent to charity.

Given the sudden, radical change in Thomas’s mental functioning and behavior, in 2014, a conservatorship over his estate was established, along with court-appointed counsel to represent Thomas. Subsequently, Thomas, influenced by outside sources and represented by nonappointed counsel, initiated a civil action in the Superior Court of Orange County against his daughters and grandchildren, alleging they had misappropriated his assets. Wilson, as conservator, retained specialized counsel to investigate the allegations. Based on the investigation, the allegations were determined to be baseless, and Wilson caused the action to be dismissed with prejudice.

Undeterred by Wilson’s actions, Thomas, again represented by nonappointed counsel, petitioned the probate court for permission to retain nonappointed counsel and pursue a civil action against defendants. Wilson successfully opposed the petition. Nonetheless, Thomas filed the first of two civil actions on June 9, 2017. Defendants successfully moved to strike the first complaint on the grounds Thomas could not retain counsel or initiate litigation without Wilson’s or the probate court’s permission. The civil court agreed, granted the motion to strike, entered a judgment of dismissal, and denied the motion for new trial. This appeal followed.

II. PROCEDURAL BACKGROUND AND FACTS

A. General Background and Initiation of the Probate Case (Super. Ct. No. INP1400272).

1. Thomas’s first marriage and the trusts.

Thomas obtained his wealth through the sale of the family business and the purchase of commercial properties. Thomas and Wanda were married in 1951, and they had three daughters (Laura, Sandra, & Julie). On July 28, 1988, Thomas and Wanda created the Tedesco Family Trust (Family Trust). In December 1993, they requested Mitchell of Jeffer Mangels create TW Tedesco Properties, L.P., a California limited partnership (Tedesco Properties). Tedesco Properties became the owner of various assets and real estate previously controlled by Thomas. Initially, Thomas was the sole owner of the one percent general partner’s interest and 98 percent limited partner’s interest, and Wanda owned the remaining one percent limited partner’s interest; however, Thomas transferred his 98 percent limited partner’s interest into the Family Trust, and in early 1995, assigned his general partner’s interest to the Family Trust.

In April 2002, Wanda died, and the Family Trust was divided into five separate trusts, including a survivor’s trust, which was renamed the Thomas S. Tedesco Living Trust (the Living Trust). Thomas is the sole beneficiary of the Living Trust, whose primary asset is Tedesco Properties. On February 11, 2011, Thomas executed the complete amendment and restatement of the Living Trust, and he subsequently amended it on February 23 and May 2, 2012, and June 29, 2013.

Between 1993 and 2013, Thomas (and Wanda during her life) annually transferred small percentages of Tedesco Properties’ limited partnership interest (valued at or less than the annual gift-tax exclusion) to his daughters and grandchildren. On February 11, 2011, Thomas appointed his three daughters as his “true and lawful attorneys in fact . . . to act in any lawful way for [him] and in [his] name, place and stead and for [his] use and benefit as authorized.” They were authorized to transfer trust assets and file any necessary tax returns. If a conservatorship was needed, he nominated his daughters to serve, acting by majority vote.

On September 6, 2012, W. Mae, LLC, a California limited liability company (W. Mae), was created. On December 26, 2012, Thomas gifted the Living Trust’s general partner’s interest in Tedesco Properties to W. Mae; however, the amendment to the certificate of limited partnership, which evidences this transfer, was not filed with the Secretary of State until April 4, 2013. On or about February 20, 2013, Thomas’s daughters authorized Wells Fargo to change the signer on the Tedesco Properties’ account. On June 5, 2013, Thomas resigned as trustee of the Living Trust, and his three daughters began to serve as successor cotrustees.

2. Thomas’s second marriage.

In 2005, Thomas met Gloria. Thomas was approximately 78 years old, and Gloria was 73 years old. Gloria has two daughters from a previous relationship: Wendy and Debra. Thomas and Gloria married on March 25, 2007.

Mitchell on behalf of Thomas, drafted a prenuptial agreement and a modification to Thomas’s estate plan. According to Mitchell, “there were extensive discussions regarding the house in both prenuptial and postnuptial planning. . . . Thomas . . . gave his 85% interest in the house in trust for life for Gloria along with $2 million, which reverts to the daughters after Gloria’s death. . . . [However,] after Thomas’s . . . surgeries, Gloria wanted outright ownership.” Further, according to Mitchell, “the pre-nuptial agreement and affiliated modifications to [Thomas’s] estate plan granted Gloria a life estate right to reside in [Thomas’s] residence for her lifetime should she survive [Thomas]. However, the estate plan documents do not bequeath to Gloria fee title to [Thomas’s] interest in the residence.”

3. The decline in Thomas’s health.

According to Gloria, Thomas became ill in March 2013. He had bladder cancer surgery in April, back surgery shortly thereafter, and another bladder surgery in July 2013. According to Sandra and Laura, Thomas’s memory took a “huge nose dive” in 2013, and 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.” According to Dr. Nazareth, Thomas’s “inability to function consistently on a day-to-day basis suggests a far greater disability than his [MMSE] score indicates.” The doctor opined that Thomas “has significant intellectual[] impairment and is unable to make consistent and reliable rational decisions, especially when it comes to his health or handling any financial issues, even simple ones. He needs total supervision.”

 

4. Initiation of the conservatorship.

As Thomas’s health declined, his daughters’ access to him also declined. Their names were removed from a list of persons allowed into the gated community where Thomas and Gloria lived, and Gloria began to listen in on their phone conversations. Mitchell opined that “everything seemed all right with [Thomas] until [his] surgeries in 2013.” Mitchell stated, “it was very difficult to communicate with his client [(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 his attorney.”

Concerned about Thomas’s health and Gloria’s actions, on May 2, 2014, Laura petitioned for the appointment of a probate conservator of Thomas and for an order voiding the health care power of attorney held by Gloria. Laura alleged Thomas was unable to care for himself, and Gloria was detrimental to his well-being. Mitchell sought to represent Thomas in the conservatorship proceeding. On September 10, 2014, Thomas petitioned the probate court to allow Mary Gilstrap (Gilstrap) of Roemer & Harnik to represent him. Thomas’s daughters and Mitchell (on behalf of Thomas) opposed the appointment of Gilstrap. On October 9, 2014, Laura amended her petition to request the appointment of a probate conservator of Thomas and his estate based on his incapacity to act on his own behalf and her concern that Gloria was unduly influencing him.

On October 17, 2014, the probate court, on its own motion, appointed Kenneth Jenkins (Jenkins) as GAL for Thomas “with authority to investigate, retain and discharge counsel” for Thomas’s protection. The probate court noted Gloria had opposed the conservatorship while admitting “she [was] acting as [Thomas’s] health care agent . . . [which] strongly implies her concession that the proposed conservatee lacks any ability to make his own health care medical decisions and thus provides a showing of his incapacity.” Jenkins opposed the appointment of Gilstrap as counsel for Thomas on conflict of interest grounds because Gloria’s attorney had recommended Gilstrap to Thomas.

At a hearing on March 3, 2015, the probate court relieved Jenkins of his duties as GAL. That same day, Sandra requested the appointment of Jenkins as the conservator of Thomas and his estate, and Laura joined in the request.

On April 25, 2015, Dr. David W. Trader performed a comprehensive geriatric psychiatric examination of Thomas, pursuant to the probate court’s order under Evidence Code section 730. Dr. Trader noted Thomas’s medical history. There were no medical records to review from Thomas’s primary physician, Murray Taylor, M.D.; however, Richard G. Byrd, M.D., had examined Thomas on April 16, 2014. In his September 12, 2014 deposition, Dr. Byrd stated that Thomas “has significant dementia, most likely of the Alzheimer’s type,” and he does not have “the ability to comprehend complex medical issues, . . . or . . . understand and interpret complex legal issues.” As noted, ante, Dr. Nazareth agreed that Thomas “has significant intellectual[] impairment and is unable to make consistent and reliable rational decisions, especially when it comes to his health or handling any financial issues, even simple ones.”

Dr. Trader reviewed the March 16, 2015 declaration of Shelly Counts, R.N., Director of Operations for Concierge Nursing Direct, Inc. Nurse Counts’ declaration stated that Thomas was receiving “24-hour, 7-day a week” private duty services and caregiving assistance. Nurse Counts “related how she initially interacted with Dr. Byrd” regarding Thomas’s care; however, “after Dr. Byrd was terminated, Gloria . . . refused to allow the licensed nurses to communicate with Dr. Taylor, [Thomas’s] subsequent physician.”

Dr. Trader spoke with Thomas’s family and Mitchell. Sandra reported that Gloria’s daughters had tried to take Thomas to an attorney, prompting Sandra and her

 

sisters to file a temporary restraining order for financial elder abuse. Sandra also stated that Thomas received a quarterly income of $175,000, and his trust paid the caregivers and the majority of his bills. Thomas’s daughters detailed Gloria’s actions of keeping them from Thomas and causing him to believe they were stealing from him. Gloria admitted there had been a change in her relationship with Thomas’s daughters beginning in April 2013; however, she claimed it was due to their taking “advantage of Tom financially.”

Mitchell described Thomas as (1) a “tough character, who . . . always knew what he wanted to do,” (2) being “very close” to his family, and (3) someone who “would have done anything for his three daughters.” Mitchell also observed that after the surgeries in 2013, (1) Thomas was no longer “the Tom he knew,” (2) Gloria blocked Mitchell’s phone calls or listened in and told Thomas what to say, and (3) Gloria “wanted outright ownership” of Thomas’s property regardless of the prenuptial agreement. Regarding Thomas’s estate plan, Mitchell explained that “historically” Thomas’s “primary goal was to transfer as much of his wealth to his daughters and grandchildren tax-free and minimize the taxes.” He explained Tedesco Properties was formed to accomplish the transfer of wealth and Thomas “approved of this in 2012 and transferred control to his daughters.” Mitchell opined that Thomas knew what he was doing in 2012, and his actions were “very consistent with what he had always done.” He added, “[Gloria] was not a factor in the 2012 decision to transfer control of the properties. It was driven by state and tax law.”

Dr. Trader also spoke with Thomas personally. Thomas told Dr. Trader that his daughters and Mitchell were “in cahoots,” and his daughters were trying to take over his property and money. Thomas believed he had a lawsuit against his daughters based on his name being forged on a document. He estimated his net worth to be $25 to $30 million, and he disclosed that he wanted to give “75% of his estate to Gloria and 25% to charity.” Thomas scored 19 out of 30 on the Montreal Cognitive Assessment, a test similar to the MMSE, but regarded as providing “a more accurate assessment of mild deficits in cognitive functioning compared to the MMSE.” Thomas’s score was “suggestive of a moderate level of cognitive impairment.”

According to Dr. Trader, Thomas had minimal understanding and appreciation of his medical conditions, his estate plan, his properties, and the receipt of rent. Thomas “assumed that because the money was not going directly to him, his daughters must have been stealing it.” Dr. Trader opined Thomas was “unable to provide properly for his personal needs for physical health, food, clothing, or shelter. [He] has deficits in . . . mental functioning, particularly understanding his situation, memory, reasoning, and planning, organizing, and carrying out actions in his own rational self-interest that directly impact his ability to provide for his basic needs.” Thus, Dr. Trader recommended the appointment of a neutral conservator of Thomas. The doctor also supported the appointment of a conservator of Thomas’s estate on the grounds he “lacks sufficient mental capacity to manage his own financial resources and resist fraud or undue influence.”

On June 8 and 9, 2015, the probate court conducted a court trial on the petition to appoint a conservator of Thomas and his estate. On June 15, 2015, the probate court appointed Jenkins as the temporary conservator of Thomas’s estate; however, the court denied the petition to appoint a temporary conservator of Thomas because his “needs are currently being adequately met through the use of the existing estate documents.” On August 10, 2015, the parties stipulated and agreed to the appointment of Wilson as permanent conservator of the estate.

On January 4, 2016, Wilson filed a disassociation/termination of Parker Milliken from representing Thomas. On February 24, 2016, Humphrey filed a substitution of attorney leaving Thomas in propria persona.

5. The conservator’s first account.

On June 28, 2016, Wilson (represented by Robert Barton of Holland & Knight) filed the first account, which covered the period from August 10, 2015 through May 31, 2016. According to the documents attached to the first account, Wilson and counsel (law firms with expertise in trust and estate matters and legal malpractice) investigated the claims asserted in the Orange County action, along with potential claims against Wells Fargo and former attorneys at Jeffer Mangels. As a result of those investigations, Wilson decided not to pursue the claims asserted in the Orange County action or any claims against Wells Fargo or Jeffer Mangels. On December 21, 2016, the probate court approved the first account.

 

6. The probate court’s appointment of counsel and the appearance of Thomas’s nonappointed counsel.

a. Russell Davis’s first request to be appointed as Thomas’s counsel.

On April 28, 2016, Wilson petitioned the probate court for the appointment of independent counsel to represent Thomas. In June 2016, Thomas requested the appointment of Russell Davis (Russell) as independent counsel. Russell represented that he had “received a telephone call from” Thomas who wanted legal representation. Russell retained Anthony Bassanelli, M.D., a board certified psychiatrist, to evaluate Thomas’s current capacity to designate an attorney to represent him. Dr. Bassanelli met with Thomas on May 27, 2016, and then informed Russell that Thomas “clearly had sufficient capacity to designate an attorney of his choice to represent him.”

On August 4, 2016, the probate court conducted a hearing on the appointment of counsel for Thomas. The court noted that “unappointed counsel” Russell appeared “‘specially’” for Thomas to inform the court that Thomas had “decline[d] an appointment from the court’s CRC qualified appointments list.” The court denied the request to appoint Russell and, instead, appointed Jeremy J. Ofseyer (Ofseyer) “as court qualified counsel.” The court explained 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.”

On August 29, 2016, Wilson filed a request for an elder or dependent adult abuse restraining order against Russell on the grounds he “continued [to have] contact with [Thomas],” attempted to influence his thoughts regarding court-appointed counsel Ofseyer, and caused Thomas distress and confusion. Russell continued to refuse Wilson’s request to cease contacting Thomas. On September 12, 2016, the probate court admonished Russell to stop contacting Thomas, and warned him that if he continued, “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.”

b. Russell’s second request to be appointed as Thomas’s counsel.

Within months of being appointed, Ofseyer moved to withdraw as court-appointed counsel for Thomas. In December 2016, Russell filed a second request to be appointed counsel for Thomas. On December 9, 2016, the probate court conducted a hearing on Ofseyer’s motion to withdraw. Gloria, through her attorney David M. Grey (Gloria’s attorney), supported Ofseyer’s motion because “there’s a significant conflict” based on his meeting “several years ago with [Gloria], her attorneys, and representatives.” The court referenced findings in previous orders that Gloria took Thomas to a number of attorneys for the purpose of changing his estate plan when he was not capable of doing that or understanding what he was doing, and “[c]ompletely avoiding his own long-term family lawyer [(Mitchell)] he had had for more than 20 years.” Also, the court noted that “there was evidence received from people in the home, of workers in the home, servants, who had seen evidence of influence, of script writing. Scripts for [Thomas].” The court denied Russell’s request and appointed Julia Burt as counsel for Thomas.

c. Stephen G. Carpenter’s (Carpenter) petition to file a civil action against defendants, and Russell’s third request to be appointed as Thomas’s counsel.

On May 12, 2017, Dr. Bassanelli submitted a letter in which he opined that Thomas had major neurocognitive disorder, without behavioral disturbance, mild severity, and significant short-term memory deficits that impair complex activity. He nonetheless opined that Thomas had “preserved capacity to work with an attorney of his choice,” “preserved testamentary capacity,” “preserved capacity for financial decision-making,” and “preserved medical decision-making capacity.” Dr. Bassanelli added that there was “no evidence of any undue influence on [Thomas’s] legal, testamentary, financial or medical decision-making capacities.”

On May 23, 2017, Gloria’s attorney (Grey) sent a letter to Wilson’s attorney (Barton) referencing an earlier letter Grey had sent on May 12, 2017. Grey was inquiring about (1) Wilson’s intentions regarding Thomas’s potential claim against Wells Fargo, and (2) warning of the imminent statute of limitations deadline. Grey also requested the evidence Barton and Wilson had relied upon in finding “no evidentiary basis to pursue” the Orange County action.

 

On June 8, 2017, Carpenter, represented by Russell, petitioned the probate court ex parte for an order (1) broadening Thomas’s power to allow him to file a separate civil action against defendants for various claims, which Wilson had already investigated and determined were meritless, and (2) authorizing Thomas to engage the services of the Herzog, Yuhas, Ehrlich & Ardell (The Herzog firm) and Joseph Davis (Joseph) to represent him in a civil action. Carpenter attached the proposed complaint to his first petition. Carpenter conceded the probate court’s authorization was necessary “[a]s a conservator has been appointed for [Thomas], he lacks the legal capacity to engage attorneys to bring any litigation on his behalf.”

Wilson opposed Carpenter’s first petition on the grounds (1) it “is nothing but a back door effort to thwart prior court orders,” and (2) “the pursuit of these claims are not in the best interest of [Thomas] or his Estate and . . . the Court has already determined [Thomas] does not have the ability to retain counsel or to substantially resist undue influence.” Thomas’s daughters also opposed the petition on the grounds Thomas was barred from relitigating claims that were asserted in the Orange County action and dismissed with prejudice.

At the hearing on June 8, 2017, the probate court noted that Russell was using Carpenter in an “effort to be the lawyer, in effect, for [Thomas].” The court continued the hearing on Carpenter’s first petition to August 10, 2017 to allow the parties to address the issue of whether res judicata would bar the proposed civil action. However, the court instructed Wilson’s attorney to sue Wells Fargo Bank today, “if you think that you should sue Wells Fargo.” In July 2017, Gloria (represented by Grey) filed a response brief in support of Carpenter’s first petition. The August 10, 2017 hearing was continued to September 7, 2017.

On June 16, 2017, The Herzog Firm, Joseph & Russell, representing Thomas, petitioned for termination of the conservatorship based, inter alia, on the failure to advise Thomas of his rights at the time the conservatorship was established, the absence of a valid waiver of statutory rights, and the absence of any need for a conservatorship. Hearing on the terminating petition was continued to September 7, 2017.

On June 22, 2017, Burt filed a motion to be relieved as counsel for Thomas on the grounds “non-Court appointed counsel has caused an irreparable breakdown of [her] attorney/client relationship with [Thomas], and therefore [she] can no longer adequately represent [him].” In response, on or about August 2, 2017, Russell filed a third ex parte petition to be appointed counsel for Thomas on the grounds Burt had submitted her resignation. Hearing on Russell’s petition was continued to September 27, 2017.

On July 10, 2017, Wilson filed a notice of disassociation/termination of counsel for Thomas, disassociating and terminating The Herzog Firm, Joseph and Russell. On January 5, 2018, the probate court denied Russell’s third request to be appointed counsel for Thomas.

B. The Civil Action (Super. Ct. No. PSC1703036).

Despite the probate court’s contrary rulings, on June 9, 2017, The Herzog Firm and Joseph, acting as counsel for Thomas, initiated this civil action (Super. Ct. No. PSC1703036). The complaint alleged Thomas was “given authority by the Riverside Superior Court pursuant to Probate Code §§1873 and 1874 to bring this action.” Thomas’s daughters moved to strike the complaint on the grounds Thomas, the conservatee, “lacks capacity to sue [them], and that the issue of [his] capacity to sue [them] is currently pending before the Probate Court.”

On August 10, 2017, the civil court granted the motion to strike and dismissed the action . The court expressed concern that The Herzog Firm and Joseph “knew that [Thomas] was under a conservatorship and had not yet even filed any petition with the probate court that would allow them the ability to represent [Thomas] or otherwise move forward with this litigation.” The court added, “[o]f concern is the fact that the Complaint alleges that the probate court gave authority for this action to be brought, an allegation which does not appear to be borne out by the Court records.” On August 14, 2017, notice of the court’s ruling was filed.

On September 1, 2017, Thomas moved for a new trial on the grounds defendants failed to raise (1) his lack of legal capacity by special demurrer, (2) the lack of a GAL could be remedied by granting leave to amend, and (3) the existence of a conservator of his estate does not deprive him of the right to enforce personal rights and injuries. On October 4, 2017, defendants successfully opposed Thomas’s motion. The civil court noted the “action was filed without the approval of the conservator and based upon a false representation by counsel that they had permission to file the action.”

Thomas appealed the judgment of dismissal.

III. DISCUSSION

A. Standard of Review.
B.
“An order striking all or part of a pleading under Code of Civil Procedure section 435 et seq. is reviewed for abuse of discretion. [Citation.] This means that the reviewing court will disturb the ruling only upon a showing of a ‘“‘clear case of abuse’”’ and a ‘“‘miscarriage of justice.’”’ [Citations.] Discretion is abused only when, in its exercise, the trial court ‘“exceed[ed] the bounds of reason, all of the circumstances before it being considered.”’” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1282.) Likewise, “a trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.” (Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)

B. Analysis.

Thomas contends the civil court abused its discretion in striking his complaint based on his lack of capacity and in denying his motion for new trial. He argues (1) defendants should have filed a special demurrer to challenge his lack of capacity, (2) the civil court should have appointed a GAL for him, if necessary, (3) he has the right to secure independent counsel of his choice despite the existence of a conservatorship of his estate, and (4) his misrepresentation that the probate court had granted authority to bring the action does not warrant dismissal. As we explain, we reject Thomas’s contentions.

1. Thomas lacked “legal capacity” to initiate this action.

“The conservatorship statute permits a court to ‘appoint a conservator for a person who [is] neither insane nor incompetent, but who, for a variety of other reasons, need[s] direction in the management of his [or her] affairs.’ [Citation.] A conservator may be sought where the proposed conservatee is unable . . . to manage his or her own estate or to do so free from undue influence or fraud.” (Conservatorship of Bookasta (1989) 216 Cal.App.3d 445, 449.) Hence, conservatorship proceedings involve issues of the proposed conservatee’s “legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate.” (Prob. Code, § 1872, subd. (a).) A “‘transaction’ includes, but is not limited to, making a contract, sale, transfer, or conveyance, incurring a debt or encumbering property, making a gift, delegating a power, and waiving a right.” (Prob. Code, § 1870.) It also includes entering into a contract for legal services. (1 Cal. Conservatorship Practice (Cont.Ed.Bar 2018) § 11.15B, p. 11-22 [“someone for whom a conservatorship of the estate has been established loses the right to enter into contract and cannot retain counsel”]; Sullivan v. Dunne (1926) 198 Cal. 183, 193-194.) Moreover, “[w]hen . . . a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a [GAL] appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” (Code Civ. Proc., § 372, subd. (a)(1).) The conservator is authorized to protect the conservatee’s interests through court action. (Prob. Code, § 2462, subd. (a) [Conservator may “[c]ommence and maintain actions and proceedings for the benefit of the ward or conservatee or the estate.”].)

Here, a conservatorship of Thomas’s estate was established, and Thomas conceded that he lacked the capacity to contract with nonappointed counsel and file this action when he petitioned the probate court, via Carpenter’s petition, for the authorization to broaden his power. Having failed to obtain such authorization, the civil court correctly struck the complaint and denied the motion for new trial.

 

2. Defendants’ failure to challenge Thomas’s lack of capacity with a special demurrer was not improper.

Thomas contends defendants waived their challenge to his lack of capacity to sue by filing a motion to strike instead of a special demurrer. We reject the contention on the grounds defendants’ motion to strike the complaint properly raised the issue of Thomas’s lack of legal capacity.

Traditionally, a motion to strike is used to reach defects in a pleading that are not subject to a demurrer. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008, p. 420.) Code of Civil Procedure section 436, subdivision (b), “authorizes a challenge to ‘all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.’ While this language might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect. Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)

In contrast, a “special demurrer is, or should be, directed to specific portions of the complaint, and the grounds should be specifically pointed out.” (Jones v. Iverson (1900) 131 Cal. 101, 104.) Code of Civil Procedure section 430.10 allows a special demurrer on the grounds that the person who filed the pleading does not have the legal capacity to sue. (Code Civ. Proc., § 430.10, subd. (b).) The term “capacity to sue” refers to the legal ability of plaintiff to come into court. A special demurrer for want of capacity to sue “raises only the question of whether any general legal disability exists, such as infancy or insanity, or want of title in the plaintiff to the character in which he sues.” (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 18.)

According to Thomas, the only way to raise the issue of his lack of capacity is through a special demurrer, and defendants’ failure to do so waives their challenge. We disagree. A motion to strike a complaint is proper when the complaint has not been filed in conformity with a court order. (Code Civ. Proc., § 436, subd. (b); Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at p. 528.) Here, since Thomas was subject to a conservatorship of his estate, he lacks the legal capacity to retain counsel or initiate litigation. (Prob. Code, § 1872, subd. (a); Civ. Code, § 40 [a conservatee “can make no conveyance or other contract, nor delegate any power or waive any right, until his or her restoration to capacity”].) Rather, the conservator—in this case Wilson—is responsible for commencing and maintaining actions for the benefit of the conservatee or the estate. (Prob. Code, § 2462 [“[C]onservator may [¶] [c]ommence and maintain actions and proceedings for the benefit of the . . . conservatee or the estate”]; Code Civ. Proc., § 372, subd. (a)(1).) Thus, Thomas could only initiate an action through Wilson or a GAL appointed by the probate court.

Thomas’s lack of legal capacity required either Wilson or a GAL to file this action. Absent their appearance, defendants correctly moved to strike the complaint.

 

3. The civil court did not err in denying Thomas’s motion for new trial.

Thomas faults the civil court for denying his motion for new trial, contending the court should have granted leave to amend and appointed a GAL, if necessary and despite the existence of a conservatorship of his estate. The flaw in Thomas’s assertion is the assumption that his legal incapacity to sue is merely “an irregularity which is easily cured.” As we explain, the legal capacity defect presented in this case was not subject to cure by the civil court’s appointment of a GAL.

As stated, ante, Thomas’s estate is under conservatorship and, thus, Thomas, individually, lacks legal capacity to initiate an action against defendants. Nonetheless, his claims were presented to Wilson, who retained independent counsel to investigate their merit. As a result of that investigation, Wilson chose not to pursue them and reported his decision in the first account. Displeased with the decision, Thomas initiated this action without challenging Wilson’s decision or the probate court’s approval of the first account, which incorporated the decision and, then Thomas sought the appointment of a GAL in the civil court. However, because of the establishment of the conservatorship, the proper jurisdiction to seek appointment of a GAL was in the probate court.

“‘Under the rule of exclusive concurrent jurisdiction, “when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” [Citations.] The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits.’ [Citation.] Ordinarily, ‘[p]riority of jurisdiction resides in the tribunal where process is first served.’” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769-770, italics added.)

Here, the tribunal where process was first served is the probate court when the petition for conservatorship of Thomas and his estate was filed in 2014. As a result of that petition, the probate court, on its own motion, appointed Jenkins as GAL for Thomas “with authority to investigate, retain and discharge counsel” for Thomas’s protection. Subsequently, in June 2015, the court appointed Jenkins as the temporary conservator of Thomas’s estate; however, two months later, the parties stipulated and agreed to the appointment of Wilson as the permanent conservator of the estate.

Initially, Carpenter petitioned the probate court to broaden Thomas’s power to file a separate civil action against defendants and engage The Herzog Firm and Joseph. Prior to the probate court’s ruling on the petition, on June 9, 2017, Thomas initiated this action against defendants. Because Thomas failed to obtain permission from Wilson or the probate court, the civil court granted defendants’ motion to strike Thomas’s complaint, entered a judgment of dismissal, and denied Thomas’s motion for new trial.

Nonetheless, Thomas contends that because his “claims for Elder Abuse . . . involve[] personal rights and injuries not implicating estate property and [are] outside the conservatorship of the estate,” the existence of a conservatorship of his estate does not deprive him “of the right to be represented or to enforce personal rights.” Under the facts of this conservatorship, we disagree. First, Thomas’s claim for “elder abuse” is a claim for financial elder abuse, which implicates Thomas’s estate. Second, as we have observed, Wilson investigated Thomas’s claims, retained independent legal counsel, and concluded they lacked merit. And finally, the Probate Code provides several mechanisms for Thomas to challenge Wilson’s decision within the forum of the probate court.

For the above reasons, we conclude the civil court properly denied the motion for new trial because it lacked the authority to appoint a GAL for Thomas. Under the doctrine of exclusive concurrent jurisdiction, only the probate court could appoint a GAL for Thomas. While “the rule of exclusive concurrent jurisdiction is a rule of policy and countervailing policies may make the rule inapplicable” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770), we perceive no policy that would justify abating the probate court’s authority in this matter.

4. Thomas’s right to independent counsel of his choice is not absolute.

Thomas contends he was able to retain private counsel, and neither Wilson nor the probate court could interfere with his choice. We disagree.

Since 2014, Thomas’s estate has been under a conservatorship. As a conservatee, Thomas lacks the legal capacity to retain independent counsel absent probate court approval. Pursuant to Civil Code section 40 and Probate Code section 1872, subdivision (a), the appointment of a conservator of an estate is an adjudication of the conservatee’s legal incapacity to enter into transactions, including making a contract, incurring a debt, and delegating power. (Prob. Code, § 1870.) While the conservatee (Thomas) retained (1) the right to control an allowance, wages or salary, (2) the right to make a will, and (3) the right to enter into transactions to the extent reasonable to provide the necessaries of life (Prob. Code, § 1871), he or she may not enter into a contract for legal services. (Conservatorship of Chilton (1970) 8 Cal.App.3d 34, 40 [affirming the trial court’s denial of an award of attorney fees where a conservatee signed a retainer agreement when he or she “had no capacity to enter into a valid contract employing petitioner . . . as [his or] her attorney”]; Sullivan v. Dunne (1926) 198 Cal. 183, 193-194 [attorney could not contract with incapacitated person].) Thus, on his own, Thomas was unable to retain The Herzog firm, Evan Marshall, Joseph or Russell as his independent counsel.

The Probate Code provides four ways for Thomas to pursue representation by nonappointed counsel. First, Thomas could have petitioned the probate court to broaden his power to enter into a transaction to retain counsel. (Prob. Code, § 1873, subd. (a).) On June 8, 2017, Thomas initiated such a petition (Super. Ct. No. INP1400272); however, it was never ruled upon. Second, an “interested person” could have petitioned the court to “instruct the . . . conservator . . . in the administration, management, investment, disposition, care, protection, operation, or preservation of the estate, or the incurring or payment of costs, fees, or expenses in connection therewith.” (Prob. Code, § 2403, subd. (a).) Third, Gloria “or any relative or friend of the conservatee or other interested person” could have filed a “petition for the termination of the conservatorship” stating “facts showing that the conservatorship is no longer required.” (Prob. Code, § 1861, subds. (a), (b).) Here, nonappointed counsel filed two such petitions and appointed counsel filed one; however, they withdrew them prior to disposition. And finally, Thomas could have sought to hire counsel on a contingency basis by having Wilson seek court approval of such contract. (Prob. Code, §§ 1471, subd. (a), 2644, subd. (a).) None of these ways were pursued to completion.

Here, independent counsel was appointed for Thomas in response to a petition filed by Wilson on April 28, 2016. The petition was granted on August 4, 2016, with the appointment of Ofseyer, and again in December 2016, with the appointment of Burt. Nonetheless, nonappointed counsel continued to interfere in both the attorney-client relationship between Burt and Thomas, and the conservatorship. By June 2017, Burt asked to be relieved as Thomas’s counsel on the grounds “non-Court appointed counsel has caused an irreparable breakdown of [her] attorney/client relationship with [Thomas], and therefore [she] can no longer adequately represent [him].” Because the probate court had appointed independent counsel for Thomas, any change in independent counsel rests with the probate court. Nonappointed counsel had no authority to represent Thomas, and Thomas had no power to retain nonappointed counsel, absent Wilson’s or the probate court’s approval.

In short, as a conservatee, Thomas’s right to independent counsel is not absolute; counsel must be approved by the probate court.

5. Dismissal of the complaint was not based on Code of Civil Procedure section 128.7 or Business and Professions Code section 6068.

Finally, Thomas asserts the dismissal of his complaint was erroneously based on “the incorrect statement of paragraph 3 of the Complaint regarding the probate court’s grant of authority, and violation of C.C.P. § 128.7 and Business and Profession Code §6068.” On behalf of himself and nonappointed counsel, he challenges the charge that they acted in bad faith. We have reviewed the civil court’s ruling and conclude there are no findings of bad faith because the court did not rely on either Code of Civil Procedure section 128.7 or Business and Professions Code section 6068 in dismissing the complaint.

According to the August 10, 2017 tentative ruling, the civil court dismissed the complaint because Thomas was “under an active conservatorship and [nonappointed counsel did] not have authority to represent [him]. As [Thomas] did not have the legal capacity to bring this action, nor did [nonappointed counsel] have the right to bring it on his behalf, the Court strikes the complaint.” Later, the civil court commented that it “appears” that nonappointed counsel “may have filed this Complaint knowing that [Thomas] lacked legal capacity to file this action or to retain” nonappointed counsel. Also, the court expressed concern that “the Complaint alleges that the probate court gave authority for this action to be brought, an allegation which does not appear to be borne out by the Court records.” However, in denying Thomas’s motion for new trial, the civil court noted that its order striking the complaint was based on “the following untrue statement in the complaint: [¶] ‘Plaintiff has been given permission by the Riverside Superior Court pursuant to Probate Code §§ 1873 and 1874 to bring this action.’” Although the civil court referenced Code of Civil Procedure section 128.7 and Business and Professions Code section 6068 in its order denying Thomas’s motion for new trial, neither of these sections nor the term, “bad faith,” were used in the court’s order striking the complaint. We therefore conclude the civil court did not base its decision to dismiss the action on a finding of bad faith by Thomas or nonappointed counsel.

 

IV. DISPOSITION

The judgment is affirmed. Defendants and respondents are to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.