Conservatorship Personnel v. Bourdet

• Decision Date: 23 May 2014
• Docket Number: A139763
• Court: California Court of Appeals Court of Appeals
• Parties: Conservatorship of the Person and Estate of GEORGE BAYLACQ. LARRY MEREDITH, as Public Guardian, etc., Petitioner and Respondent, v. ROBERT BOURDET, JR., Objector and Appellant.

Conservatorship of the Person and Estate of GEORGE BAYLACQ.

LARRY MEREDITH, as Public Guardian, etc., Petitioner and Respondent, v. ROBERT BOURDET, JR., Objector and Appellant.

A139763

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Filed: May 23, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Marin County

Super. Ct. No. PRO-073426)

George Baylacq suffered from dementia, and the Marin County Public Guardian (Public Guardian) was appointed as conservator of both his person and his estate. Kimberly Bourdet (Kimberly),¹ Baylacq's stepgranddaughter-in-law and primary caretaker, pled guilty to financial elder abuse by a caretaker. At the time of the financial abuse, Kimberly was the trustee and named primary beneficiary of Baylacq's revocable trust. Appellant Robert Bourdet, Jr., (Robert Jr.) was Baylacq's stepgrandson and Kimberly's spouse. Robert Jr. was named successor trustee of Baylacq's trust. He also was the named executor of Baylacq's pour-over will, with Kimberly named as successor. Subsequent to Kimberly's conviction, the Public Guardian filed a petition for substituted judgment to allow revocation of the trust and to make a new will for Baylacq, so thatneither Kimberly nor Robert Jr. could take from Baylacq's estate upon his death. Robert Jr. did not respond to the Public Guardian's petition or appear at the hearing where the trial court issued an order granting that petition. Baylacq passed away a few months later, and Robert Jr. later filed a motion to set aside the order on the grounds of inadvertence, excusable neglect, mistake or surprise. Robert Jr. alleged that he did not receive notice of either the petition or hearing. The trial court denied the motion after a contested hearing. We affirm.

I. BACKGROUND

On June 4, 2008, the Public Guardian was appointed, over Kimberly's objection, by the Marin County Superior Court as the conservator of the estate of Baylacq. At the time, Kimberly held durable powers of attorney for health care and financial matters for Baylacq, and she was the designated trustee of the George Pascal Baylacq Revocable Trust (Trust). In April 2010, Kimberly was arrested and charged with criminal financial abuse of Baylacq (People v. Bourdet (Super. Ct. Marin County, 2010, No. SC169294). On June 24, 2010, the court issued a letter of conservatorship making the Public Guardian conservator of both Baylacq's estate and his person. On March 4, 2011, Kimberly pled guilty to one count of financial elder abuse by a caretaker pursuant to Penal Code former section 368, subdivision (e).² Conditions of her probation included an order to pay restitution in the amount of $211,175 plus interest. On May 24, 2011, an amended letter of conservatorship was issued, providing the Public Guardian with authority to authorizeadministration of medications for treatment of dementia (Prob. Code, § 2356.5, subd. (c)).

On September 27, 2012, the Public Guardian filed a "Petition for Substituted Judgment to Exercise the Conservatee's Right to Revoke the George Pascal Baylacq Revocable Trust and Petition for Substituted Judgment to Make a Will" (Petition). The Petition alleged that the beneficiaries under the Trust and under a will executed May 27, 2004, and its codicil, included Kimberly and Robert Jr. To ensure that neither Kimberly nor her heirs, including Robert Jr., would inherit from Baylacq, the Petition sought authorization for the Public Guardian, as conservator, to exercise the conservatee's right to revoke the Trust, and any amendments, thereto under Probate Code section 2580, subdivision (b)(11), and an order authorizing the Public Guardian to execute a new will on behalf of Baylacq under Probate Code section 2580, subdivision (b)(13). The Petition identified Kimberly and Robert Jr. as persons to whom notice was required to be given under Probate Code section 2581. A notice of hearing accompanied the Petition, setting a hearing date of November 13, 2012 at 9:00 a.m. in Department C of the Marin County Superior Court. An attached service list included both Robert Jr. and Kimberly at an address of "47 Rowe Ranch Way, Novato, CA 94949."

Neither Kimberly nor Robert Jr. attended the November 13, 2012 hearing. Only counsel for the Public Guardian and the public defender as counsel for conservatee Baylacq appeared. The court made a finding that "notice of the hearing has been given in accordance with the law," found the allegations of the Petition to be true, and granted the Petition (Petition Order). The new will, executed on Baylacq's behalf, removed Kimberly and Robert Jr. as beneficiaries and left the estate to Baylacq's stepsons, Rene Bourdet and Robert Bourdet, Sr. Baylacq died on February 6, 2013. His new will was lodged with the court on April 3, 2013.

On May 13, 2013, Robert Jr. filed a motion to set aside the Petition Order (Motion) on the grounds that he was not aware of the hearing, that the Petition Order was not supported by the law or the evidence, and that his failure to object to the Petition was the product of excusable neglect, mistake and inadvertence. In a declaration attached tohis motion, Robert Jr. averred that "I did not receive the Notice of Hearing dated September 27, 2012. On May 6, 2013, I received a Notice of Hearing for June 10, 2013. I read in those papers about the order revoking the trust and the new will. I contacted [counsel] that day. The June 10 notice came in a single envelope addressed to Kimberly Bourdet and Robert Bourdet. [A true copy of the mailing label is attached to this Declaration as Exhibit A]." (Brackets in original.) The address on the mailing label attached to the declaration was "47 Rowe Ranch Way, Novato, CA 94949."

In opposition, the Public Guardian submitted the declaration of Michelle Schoonover, a probate specialist in the Marin County Counsel's Office. Schoonover declared: "On September 27, 2012, I served by mail a Notice of Hearing and [the Petition] to various individuals including Kimberly Bourdet and Robert Bourdet, Jr. at 47 Rowe Ranch Way, Novato, CA, 94949. Attached as Exhibit '1' is a true and correct copy of the Proof of Service of the Notice of Hearing and petition for substituted judgment executed by me on September 27, 2012." Exhibit 1 was Judicial Council Forms, form GC-020, with the notice of hearing on the first page, Schoonover's declaration of service under penalty of perjury on the second page, and the referenced service list on an attachment. Schoonover's proof of service stated that the notice of hearing had been served by mailing, to Robert Jr.'s address in Novato, on September 27, 2012. Schoonover also averred that she had served other notices by mail in this conservatorship matter to Robert Jr. and Kimberly at the same 47 Rowe Ranch Way address, and had never been notified by either party that there was a problem with mail delivery to this address. She attached three other notices she had served by mail to Robert Jr. and Kimberly at the Novato address on April 9, 2010, April 8, 2011, and April 30, 2013.³

The court heard the Motion on June 17, 2013. On the notice issue, Robert Jr. argued only that his declaration "rebuts the presumption of receipt." The court denied theMotion, stating that it had "read the respective filings related to the motion." The court also noted that the Motion was based on the fact that Robert Jr. "stated he was not aware of the hearing and didn't attend . . . pursuant to excusable neglect. [¶] The Court finds insufficient evidence to cause the Court to set aside the substitution of judgment on those grounds, noting that there are service documents in the Court's file that clearly show that notice was provided at the Novato address for [Robert Jr.], which was listed actually throughout the case file, and simply there is no evidence to rebut the issue of notice. So that's denied."

A written order denying the Motion was issued on July 8, 2013 (Motion Order). A notice of appeal for both the Motion Order and Petition Order was filed on September 6, 2013.

II. DISCUSSION

A. The Motion Order

Code of Civil Procedure section 473, subdivision (b)⁴ provides, in pertinent part, that "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." The standard of review for such a motion is abuse of discretion. (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 663 (Brar).) " 'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) "Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant. [Citation.]" (Brar, at p. 663.)

Robert Jr. directs our attention to the policy of the law that controversies should be heard and determined on their merits. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694-703.) He also emphasizes that section 473, subdivision (b) is a remedial statute to be liberally construed and any doubts existing as to the propriety of setting aside adefault should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 909.) He correctly articulates the underlying policy, and because of this policy, " 'a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.' [Citations.]" (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) "Appellate courts are much more...