Conservatorship of Armando Isabel Perez

Case Number

21PR00508

Case Type

Hearing Date / Time

Wed, 04/03/2024 - 08:30

Nature of Proceedings

1) Motion to Be Relieved as Counsel 2) Motion to Withdraw Fee Request

Tentative Ruling

Probate Notes:

Appearances required.

Appointment of D. Balsamo as Counsel

It is recommended the Court reject Mr. Balsamo’s request.  D. Balsamo formerly represented Patricia Perez Hogan in the related trust case (22PR00501).  Mr. Balsamo filed a Substitution of Attorney on January 18, 2024 indicating he was replacing Michael Pick as Ms. Perez Hogan’s attorney.  Ms. Perez Hogan has consistently asserted claims adverse to the interests of the Conservatee, or his trust, and has even been sued by Mr. Perez in a related civil case (21CV03120).  Thus, Mr. Balsamo cannot represent the Conservatee in this case without violating Rule 1.9 of the Rules Professional Conduct (formerly Rule 3-310).

Objections by Perez Hogan

It is recommended the Court find that Ms. Perez Hogan waived her objections.  Pursuant to California Rules of Court, Rule 7.801, the Court continued all matters on calendar at the last hearing in order to give Ms. Perez Hogan an opportunity to file a written objection to all issues raised by Ms. Perez Hogan at the last hearing.  No written objection is on file.

Motion to Be Relieved as Counsel

It is recommended the Court grant the petition, and appoint Tammi Faulks Matta as the attorney for Conservatee.

Motion to Withdraw Fee Request

The following is noted for the court at the hearing:

The motion by the Public Defender is problematic for the following three reasons:

1. The Motion cites no authority for a procedure to “withdraw previous request for fees,” especially a request that resulted in a court order granting those fees.  Thus, it is procedurally improper and should be stricken pursuant to CCP section 436.

2. If Movant mistakenly meant to Motion this Court to Set Aside a Court Order pursuant to CCP section 473, they included none of the required information for that motion, and would be impermissibly requesting the court set aside an order that is on appeal.

3. Even if the Court could set aside the order, there is no reason to do so, since the award of attorneys fees to the Public Defender is authorized by Probate Code sections 1471 and 2357(d).

The initial Petition to appoint a general conservator was filed in this case on October 25, 2021.  Within that petition, it was indicated that the petitioner sought major neurocognitive disorder powers pursuant to Probate Code section 2356.5.  Due to this request, this Court appointed the Public Defender for the proposed conservatee pursuant to Probate Code section 1471, as directed by Probate Code section 2357(d).  Thus, the Public Defender was appointed pursuant to a section of the Probate Code that authorizes this Court to award fees to the Public Defender. (Conservatorship of Berry (1989) 210 Cal.App.3d 706, 724. See also Conservatorship of Rand (1996) 49 Cal.App.4th 835, 842–843 [“In Conservatorship of Berry [citation], the court was presented with the issue of what constitutes a proper award of attorney fees to a public defender who is working for Riverside County. [Citations.] The Berry court held that pursuant to Government Code section 27712, the trial court could not order payment of attorney fees in an amount greater than the actual cost to the county of the services.”].)

The Court, upon petition by multiple parties for fees, awarded those parties fees via court order on September 12, 2023.  Part of that fee award included the Public Defender. (Rul. On Pleadngs., filed Sep. 12, 2023, at ¶4.)  If the Court were to set aside that order, it would be setting aside an order that is currently on appeal. (Not. of Appeal, file Nov. 16, 2023.) 

The Public Defender includes a vague argument that the case is not stayed, except for those matters “not affected by the judgment or order.” (Mot., at p. 3, lns. 23-25.)  But the Public Defender has in no way shown how setting aside the very order that is the subject of an appeal is not a matter that is affected by the judgment.  To the contrary, the judgment on appeal contains an order awarding fees to the Public Defender at an amount that is discounted in comparison to the fees requested, and the very issue on appeal is whether the Court abused its discretion to do that to the party appealing the order.  Thus, if the Court set aside the judgment, not only would it moot the appeal for the appealing party, it would directly affect any instruction/judgment the Court of Appeal may render regarding the award to the Public Defender (if it so chooses to opine on such). 

Accordingly, the Court should deny or strike the motion.

Even if the Court could set aside the order, it is beyond confusing as to why the Public Defender now requests this Court to reverse an award of attorney’s fees made pursuant to the above cited Probate Code authority; especially when the Public Defender admits this authority is legitimate. (Mot., p. 4, lns. 20-27.)  If the Public Defender does not want the money that this Court ordered the conservator to pay the Public Defender, the money can be paid to the County pursuant to 1472(c).  But since that request is not before the court (nor does the Public Defender need to bring such a request), the Court should decline to rule on that issue.