O'LEARY, J.
The trial court awarded attorney fees and costs to Teresa Gorman (Gorman), the court-appointed attorney for the now deceased Frances Gdowski (Frances).
We note this appeal is one of many brought by Diana. In June 2009, a different panel of this court considered Diana's appeal of the trial court's order to issue a protective order under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) prohibiting Diana from contacting, striking or otherwise abusing her 83-year-old father, Michael Gdowski (Michael), and requiring her to stay away from his residence. The order was reversed, not due to insufficient evidence, but because the trial court improperly relied upon the aggressive and confrontational style of cross-examination used by Diana's trial counsel. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128.)
In addition, Diana currently has another appeal before this court challenging the fees awarded to Okonski's attorney, Ernest L. Hayward, based on different purported conflicts of interest. Our opinion affirming this attorney fee award is filed concurrently with the opinion in this case. (Conservatorship of Gdowski (July 7, 2011) G044070 [nonpub. opn.].)
Diana had very different ideas from her father and sister about Frances' care and treatment in the final months of Frances' life. Diana blames Okonski, Michael and her sister, Sandra Wright Schulz (Sandra), for hastening Frances' demise. Diana believes Okonski should have been removed as conservator because she failed to heed the warning signs that Frances was suffering abuse at the hands of her husband and other family members. She blames Gorman for failing to intervene and request Okonski's replacement.
The court appointed a temporary conservatorship over Frances after a neurological condition severely compromised her ability to speak, write, or otherwise communicate. Michael and Sandra filed a petition to be co-conservators of Frances. The court rejected this petition and granted Diana's competing petition for appointment of Okonski. The court also appointed Gorman to serve as Frances' legal counsel.
The family bitterly disputed the appropriate care and medical treatment for Frances. Michael obtained a restraining order to keep Diana from visiting Frances. Frances was living at home with a 24-hour caregiver. Her treating physician, Dr. Allan Sosin, ordered intravenous fluids to be administered a few times a week in the doctor's office. Gorman visited Frances and determined she missed her daughter Diana. Gorman supported Diana's motion to modify the family law restraining order to permit monitored visitation. The court granted the motion.
As a temporary conservator Okonski did not have the capacity to make medical decisions and Frances' daughters were threatening to sue her. On January 14, 2009, she filed an ex parte petition to resign as conservator, and in the interim she requested court instructions for pending critical healthcare issues. In the petition, Okonski pointed out the family (who were now all represented by counsel) had filed conflicting petitions and objections for the trial court to resolve. She stated Frances had many life threatening ailments and she was recently hospitalized at UCI Medical Center. Her treating physician indicated Michael would be able to make the decision for placing Frances on hospice care. Okonski understood she did not have authority to give medical consent or direction. Moreover, Frances never executed a durable power of attorney for health care.
Okonski reported the family members agreed to place Frances on hospice but disagreed on resuscitation efforts. Diana was insisting her mother be designated "full code." Sandra adamantly desired her mother be designated, "no code—do not resuscitate." Okonski stated she is "caught in the middle of conflicting demands" and the family appeared to be confused about the implications of placing Frances on hospice care. Okonski concluded she wanted "to avoid all threats of lawsuits and any attendant liability for the actions she either takes or does not take, based upon conflicting advice and demands of several family members and several treating physicians, and wishes to seek court orders defining her permissible options and authorities."
Finally, Okonski stated she wished to resign "in order to avoid . . . the threat of her being embroiled in future, post-death litigation regarding allegations of her actions or inactions as temporary conservator of the person, in the event of aggravations to the medical conditions . . . or the unexpected death" of Frances. She concluded, "In [my] estimation, there is absolutely no solution or decision that can be made by [me] . . . that will meet with the approval of all the warring family members, and it is all but certain that each will seek to blame [me] for [my] decision permitting any action or inaction which should or should not have been made, regardless of medical advice, and of course proceeding with lawsuits based on allegations made with crystal clear 20-20 hindsight, long after the fact."
The court ordered that Frances not be placed in hospice care and remain on full code. It set the matter for an immediate hearing. Before the January 23, 2009 hearing, Judy Marchetti, a registered nurse and case manager employed by Okonski, filed a declaration threatening to quit if Diana did not stop screaming at her and Okonski. Marchetti recounted a disturbing incident that took place on January 18, 2009, during one of Diana's visits with Frances. Marchetti was on duty to monitor the visit as required by the restraining order. She described an intense, emotional, outburst in which Diana accused Okonski of being irresponsible and causing Frances' medical ailments. Okonski and Marchetti were concerned the screaming and accusations would frighten Frances. Sosin had expressly instructed that Frances should not be exposed to emotionally distressing situations. Marchetti reported that Sandra advised her that Sosin no longer permitted Diana to come to his medical office. Marchetti opined, "The shouting, accusations, and attempts at intimidation by Diana . . . are offensive and interfere with [my] duties . . . . and in attending to the needs of the [c]onservatee, and [it] must be stopped if [I am] to continue to administer care to the weakened [c]onservatee."
On January 23, Okonski filed a declaration stating that on December 18, 2008, she was appointed temporary conservator without the authority to control assets, but with authority to investigate and indentify all the community assets and investment portfolios being managed by Michael. Okonski stated she selected two investment advisors to review and analyze the portfolio. Both experts alerted Okonski the estate needed to diversity its investments and minimize the risky investments. They stated loans encumbered the family residence and the cash was used to purchase speculative investments. They explained Michael's high-risk investment strategy had caused staggering losses (approximately 70 percent of the estate's value) in just a few months. Okonski stated Michael had been gambling with much-needed assets and the huge losses were tragic given the healthcare needs of the elderly parties. Okonski sought the court's instruction on future investments.
Before the hearing, Diana also filed a document asking the court to protect her mother. She stated there was no evidence Frances was dying. She argued Michael was unfit to serve as conservator of Frances' person because he had a history of neglecting her medical needs. Diana asked the court to order Okonski to comply with her obligations and review Frances' medical care and financial status.
At the hearing, the court denied Okonski's petition to resign. Instead it granted her additional powers. Okonski was given authority to marshal half of the community assets. She was granted powers under Probate Code section 2355
In April 2009, the court granted Diana's counsel's motion to be relieved as counsel. Her attorney stated "the attorney-client relationship [had] broken down to the point that it is unreasonably difficult for the firm to carry out its employment effectively on [Diana's] behalf. [¶] Furthermore, the firm's continued representation of Diana . . . due to strategic choices made by Diana . . . would result in a conflict of interest in violation of the rules of professional conduct or the state bar act."
The following month, March 18, 2009, Okonski filed an ex parte petition for modification of medical powers and for instructions on healthcare options. Okonski reported Frances was again hospitalized at UCI medical center. She arranged for a meeting with all the treating physicians and the director of risk management. She learned Frances had suffered a heart attack and she was being treated in the intensive care unit. Okonski met with the doctors again a few days later, and "no physician present at the consultation meeting was of the opinion that [Frances] would survive until the time of the scheduled trial on June 22" regarding appointment of a permanent conservator. Each physician opined Frances likely only had a few days to live. Okonski reported she also visited Frances and she appeared to be resting comfortably.
Finally, Okonski advised the court the treating physicians were hydrating Frances but believed the surgical procedure needed to insert a feeding tube for nutrition carried a greater risk of harm than benefit. In light of the dramatic changes in Frances' medical condition, Okonski requested that the court update its instructions and determine if she should request surgery to insert a feeding tube and what efforts should be taken to resuscitate Frances if she cannot breath on her own or had another cardiac arrest. Okonski noted Frances had a dire prognosis and Okonski lacked the authority to modify the "full code" directive imposed by the court.
Diana filed a response, opposing Okonski's petition, stating the court's prior order was clear and required Okonski to provide hydration and nutrition to Frances. Diana asked the court to order the UCI physicians to comply with the court's medical treatment plan and provide nutrition. Diana also suggested Okonski and UCI were not painting an accurate picture and Frances was not in a "desperate physical condition." She accused Sandra and Michael of "manipulating with the assistance of the non-independent UCI palliative doctors" to mistreat Frances and they were starving her to death. Diana's new attorney, Jeffrey Vanderveen, asked the court to continue the June 22 trial to permit him to become more familiar with the case. The court denied the motion.
After considering testimony from Okonski and several physicians, the court instructed Okonski to "attempt to locate and transfer the conservatee to a facility within Orange County that will accept and evaluate [Frances]" because UCI will not provide nutrition. Okonski was ordered to continue monitoring Frances' condition regarding her ability to be moved. Finally, the court ordered Frances receive nutrition.
Okonski located and moved Frances to a long term acute care hospital, Kindred Hospital in Westminster. There Frances began receiving nutrition through a feeding tube.
On the first day of trial in June, Michael and Sandra filed a motion withdrawing their request to be appointed conservators and they requested Okonski be appointed the permanent conservator for Frances. Diana filed a motion stating Okonski no longer desired to be the permanent conservator and Diana believed another person should be appointed. She opined Okonski had mismanaged Frances' financial affairs by failing to timely marshal the assets. She stated Okonski had also mishandled Frances' medical care. The parties filed all of Frances' medical and financial records, a joint statement of the facts, and a joint statement of the case.
At the trial to appoint the general conservator, the court considered testimony from several physicians and family members. Dr. Ho was Frances' treating physician in March 2009 during her hospitalization at UCI. She testified Frances was suffering from end stage dementia and due to her frail state, active infection, failure to thrive, and heart attack, her chances of survival were very minimal. Ho stated it was her medical opinion Frances should not receive anything but hydration because nutrition would be harmful due to her medical condition. Ho recalled Okonski requested UCI continue all efforts to feed Frances, but she refused to grant her request.
Dr. Lawrence Luppi, who took over Frances' care after she was released from UCI, testified he had no criticism of Okonski's care of Frances. He stated Okonski informed him she wanted to have more extraordinary care than what was being provided at UCI for Frances. Sosin, who treated Frances from 2003 to March 2009, also testified she had no criticism of Okonski's care of Frances. The court appointed Okonski to serve as the general conservator over Diana's objection. Ten days later Frances died (July 16, 2009).
In connection with the final accounting, Gorman submitted a petition to be compensated $37,680 for her legal services. Diana filed an opposition to the petition on the basis Gorman had a conflict of interest. She revealed Okonski and Gorman shared office space. Moreover, Gorman had represented Okonski in another conservatorship proceeding. Diana argued Gorman's failure to disclose the conflict as required by the California Rules of Professional Conduct automatically barred her ability to recover fees. Gorman did not dispute her connection with Okonski, but asserted Diana lacked standing to raise the objection. She also argued the trial court was aware of the relationship. Gorman claimed the California Rules of Professional Conduct were inapt and the objection was made in bad faith. She filed a supplement to her petition to account for the extra time being spent to litigate the fee issue. She requested sanctions comprised of fees and costs.
The court ruled "assuming for argument's sake, that [Diana] does have standing to object, the court finds that the objections are without merit, and that the fees will be approved in the amount requested which is $37,680" of attorney fees, $3,500 extraordinary fees, and $535 for costs.
Rulings in conservatorship proceedings are not appealable unless expressly made appealable by statute. (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 152, p. 229.) Section 1300 identifies specific orders that are appealable. One of those orders is an order "[f]]ixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney." (§ 1300, subd. (e).) The trial court's order awarding Gorman fees falls within this category.
Even if an order is appealable, a party must have standing to appeal. (Code Civ. Proc., § 902; Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1026-1027 (Serrano).) To meet the standing requirement, a party must be "legally aggrieved" by the appealable order. (In re Jasmine S. (2007) 153 Cal.App.4th 835, 841-842.) A party is legally aggrieved for appeal purposes only if his or her rights or interests are "injuriously affected" by the judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 (County of Alameda); Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1201.) The rights or interests "injuriously affected" must be "`"immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment."'" (County of Alameda, supra, 5 Cal.3d at p. 737; Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 58.) And the rights must be "`recognizable by law.'" (In re Pacific Std. Life Ins. Co. (1992) 9 Cal.App.4th 1197, 1201, italics omitted.)
"The issue of whether a party has standing to appeal is a question of law. [Citation.] `Standing to appeal is "jurisdictional and therefore cannot be waived." [Citation.]' [Citation.] Thus, if a party has no standing to appeal, this court has no jurisdiction to consider the appeal." (Estate of Bartsch (2011) 193 Cal.App.4th 885, 890 (Estate of Bartsch).)
Gorman asserts Diana was not "injuriously affected" by the challenged order. Gorman was not Diana's attorney and owed her no fiduciary duty. The purported conflict did not affect Diana's legal rights. Moreover, Diana was not paying Gorman's fees and would not be financially disadvantaged by the estate paying those fees. (Cf. Estate of Bartsch, supra, 193 Cal.App.4th 885.) Diana had no hope of someday inheriting money from the estate. All of the estate's proceeds passed intestate to Diana's father, who had disinherited Diana. Gorman concluded the asserted conflict affecting fees did not affect Diana's legitimate interests and without some showing that her personal rights are affected she lacked standing to challenge the court's fee award.
All these points are true and we question Diana's motivation in pursuing this appeal as she has nothing to gain financially or personally if she succeeds. However, we cannot overlook the fact the Probate Code broadly confers standing on any friend, relative or "other interested person" to file written objections to a conservator's accounting in a conservatorship proceeding.
We recognize this statutory provision appears to create an exception to the large body of legal authority holding a party is "legally aggrieved" for appeal purposes only if his or her rights or interests are "injuriously affected" by the judgment. Thankfully the legislature did not liberally confer standing and took measures to limit the broad class of potential objectors to those with good faith objections. Section 2622.5 provides, "If the court determines that the objections were without reasonable cause and in bad faith, the court may order the objector to pay the compensation and costs of the conservator or guardian and other expenses and costs of litigation, including attorney's fees, incurred to defend the account. The objector shall be personally liable to the guardianship or conservatorship estate for the amount ordered."
The purpose of a court-appointed attorney is to "serve as an advocate for the conservatee." (35" Cal.Jur.3d (2011) Guardianship and Conservatorship, § 42.) The Probate Code calls for the appointment of counsel in conservatorships and depending on the reason the appointment is made on either discretionary (§ 1470, subd. (a)), or mandatory basis (§ 1471, subd (b).) The court's decision regarding appointment is reviewed for abuse of discretion. (Wendland v. Superior Court (1996) 49 Cal.App.4th 44, 51.) Whether a discretionary or mandatory appointment, the statutory scheme expressly authorizes the court to award the conservatee's attorney reasonable compensation as well as expenses. (§§ 1470, subd. (b), 1472.) We review the trial court's order awarding or denying fees for abuse of discretion. (Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 549.)
In her petition requesting fees, Gorman asserted she was appointed May 14, 2008, and served until the conservatee's death on July 16, 2009. She noted the conservatorship proceedings had been "very litigious from the outset" and her services included 17 court appearances, two trials, private meetings to facilitate settlement between the family, and multiple visits with the conservatee. Gorman attested she performed 143.8 hours of services in connection with the case. She provided a detailed invoice, requesting $37,680 for legal services and $535 for expenses from the conservator of the estate.
Diana opposed the petition directly, and in addition, objected to the conservator's final accounting. Ordinarily, in conservatorship proceedings, "the burden of proof in any hearing on objections is on the objector." (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1390.) We conclude Diana failed to carry that burden and the court acted entirely within its discretion in approving Gorman's fee award.
"In certain circumstances, a violation of the Rules of Professional Conduct may result in a forfeiture of an attorney's right to fees. (See . . . Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 14, fn. 2 [`The rule that an attorney who engages in conflicting representation without obtaining informed consent is not entitled to compensation is not based on the premise that the attorney must pay a penalty so much as the principle that "payment is not due for services not properly performed"'].) Although the breach of a rule of professional conduct may warrant a forfeiture of fees, forfeiture is not automatic but depends on the egregiousness of the violation. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1005-1006 [neither the Bus. & Prof. Code nor the Rules of Prof. Conduct provide for deprivation of fees whenever rule of professional conduct is violated; whether forfeiture of the right to collect fees is required depends on the egregious nature of the violation].)" (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 278.) In short, there must be evidence of a serious violation of the attorney's responsibilities before an attorney who violates an ethical rule is required to forfeit fees. (Pringle v. La Chapelle, supra, 73 Cal.App.4th at p. 1000, 1006.)
For example, in Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, the court held that the attorney was entitled to fees where the plaintiffs failed "to show that any violation of the rules governing representation of adverse interests was serious enough to compel a forfeiture of fees. Insofar as these questions were entrusted either to the trial court's discretion or its factfinding powers, we cannot substitute our judgment for the trial court's except on a clear showing that those powers were abused." (Id. at pp. 965-966.) We conclude the trial court did not abuse its discretion in this case.
Diana's conflict of interest argument is based on the following facts, inferences, and presumptions: (1) Gorman and Okonski shared office space; (2) Gorman represented Okonski in a different conservatorship proceeding; (3) Frances' family bitterly disputed how Frances should be treated and advocated different forms of medical treatment; (4) Okonski was not properly caring for Frances and hastened her demise; (5) given the family dynamics and Okonski's poor performance, Gorman was the only independent advocate for Frances's interests; (6) Gorman was "inherently prevented" from representing Frances with "undivided loyalty" because she also owed a duty of loyalty to Okonski; (7) if Gorman did not have a conflict of interest she would have sought to remove Okonski as conservator; and (8) Gorman forfeited her fees by failing to properly represent Frances by requesting removing of Okonski.
We conclude the above argument is a house of cards balanced on the faulty premise Gorman violated her responsibilities by failing to seek Okonski's removal as conservator. This was the only concrete example we found of an alleged egregious violation in the briefing on appeal. Diana offers no other specific examples to support her claim Gorman could not properly advocate for Frances due to her relationship with Okonski.
If we assume without deciding there was an ethical violation (in representing both Frances in this case and Okonski in a different case) we nevertheless affirm the court's ruling awarding fees because there is substantial evidence both Gorman and Okonski advocated for and were loyal to Frances' best interests in this case. Stated another way, there is simply no evidentiary support the trial court would have removed Okonski as conservator in this record.
This is a unique case in which the court repeatedly reviewed and approved Okonski's performance as a conservator throughout the proceedings. The record clearly shows the trial court did not take a hands-off approach, but rather specifically instructed Okonski on medical care decisions as Frances' health deteriorated. Its close involvement with the case suggests the court was well aware of Okonski's level of performance and Diana's ceaseless criticisms of her. Despite Diana's many objections, the court repeatedly confirmed the appointment by denying Okonski's petition to resign, by determining Okonski could better serve Frances if given more authority over her person and estate, and by ultimately declaring Okonski the permanent conservator. In short, the trial court implicitly approved of Okonski's performance by progressively conferring to her more and more authority over Frances' affairs.
The court's first opportunity to consider Okonski's performance was in conjunction with her January 2009 petition to resign due to a perceived threat of litigation from the warring family members. Diana supported this resignation and she argued Okonski was not properly doing her job. The court considered the parties' arguments, denied the petition, and gave Okonski additional powers as conservator. In short, Diana's arguments at that time were considered and rejected.
Three months later, when Okonski requested instructions on healthcare options after the doctors at UCI medical center refused to provide Frances with a feeding tube, Diana again advised the court of why she disapproved of Okonski's care. The court considered testimony from several physicians and the parties before providing Okonski with additional instructions for continuing her care for Frances. Again Diana's objections to Okonski's performance were rejected.
After Okonski carried out the court's instructions by finding a facility that would insert a feeding tube, the court commended her efforts in prolonging Frances' life. At the trial regarding appointment of a permanent conservator, the court heard three physicians testify they had no criticism of Okonski's care. Luppi noted Okonski requested more "than extraordinary care" for Frances. After considering the parties' argument, the court again implicitly approved of Okonski's performance by appointing her the permanent conservator to continue caring for Frances.
Contrary to Diana's summary of the record, we found no evidence the court had doubts about Okonski or indicated she should be replaced. To the contrary, the court specifically complimented Okonski's efforts. It stated, "I know so much more about this case than oftentimes a judge does when you have a matter coming for trial because I've seen you all over the course of the past six months. . . . [¶] My first . . . significant experience was . . . when we had a woman who was gravely ill and, according to medical professionals, on verge of death. And because she had a family member, [Diana] . . . who would not accept that that was the case, combined with, I think, some fairly effective work by . . . Okonski, she lives now. . . . So I really want to commend to everybody who was involved with that."
After giving this compliment, the court noted it was an unusual case in that Okonski wished to resign and it scheduled a future hearing on that issue. However, it was careful to note Okonski had "done a competent job" and it could not be said "she did not discharge her duties sufficiently. [¶] I have considered everything here, and I think that . . . Okonski is actually part of the reason why Frances . . . still lives. I remember her testimony from the hearing with UCI where she indicated that she could not accept the conclusions of the doctors and wanted an opportunity to see if she could find alternative medical care and another physician. She did that. And partially because of that, Frances . . . lives today."
To summarize, the record reflects the court was aware of Diana's objections regarding Okonski's performance (which are the same criticisms Diana raises on appeal). Diana's repeated efforts to have Okonski reprimanded by the court or removed as conservator all failed, and she did not appeal any of those rulings. She fails to suggest how Gorman would have achieved a different result. More importantly, she did not prove any of her many criticism of Okonski had merit. All the purported warning signs she offered to show Okonski was hastening Frances' demise were considered and rejected by the trial court. And there was no medical or expert evidence to support Diana's claim a different course of treatment would have prolonged Frances' life.
Therefore, we conclude the trial court's extensive involvement and rulings in this case soundly defeats Diana's argument Gorman's purported conflict resulted in an egregious violation of her duties to Frances. There is substantial evidence that Gorman and Okonski, despite interferences from the warring family members, exhibited undivided loyalty to their client, Frances. They both advocated care and medical treatment that the court agreed was in Frances' best interests. That Diana feels they should have done more for Frances shows a difference of opinion, not an egregious violation of the rules of ethics warranting forfeiture of the fees for services well performed.
The order awarding Gorman attorney fees is affirmed. Gorman shall recover her costs on appeal.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.
