IN RE: Estate of Wilhelmina FLEMING

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Court of Appeal, First District, Division 4, California.

IN RE: Estate of Wilhelmina FLEMING, Deceased. Mary LEMAITRE, Anne Fraser, Susan Davidson, and American Cancer Society, Contestants and Appellants, v. Richard TRAVIS, Ryann Abeel, Mary J. Salma & Y. Salma, Objectors and Respondents.

No. A045452.

Decided: May 14, 1990

Catherine Duggan, Oakland, for appellant American Cancer Society California Div., Inc. Duane W. Dresser, Jordan, Keeler & Seligman, San Francisco, for appellants Mary Lemaitre, Anne Fraser and Susan Davidson. Richard M. Travis, San Francisco, Conservator of the Estate. William R. Benz, Larkspur, for respondents Mary J. Salma and Y. Salma.

Mary Lemaitre, Anne Fraser, Susan Davidson and the American Cancer Society (appellants) appeal from the probate court's order confirming the sale of one-half interest in the property located at 2539 Vallejo Street, San Francisco and from the court's order denying their petition to set aside the sale. They contend that the sale was void because it was held without proper notice and because respondent Richard Travis, the conservator of the estate of Wilhelmina Fleming, misrepresented and concealed certain facts. We reverse.

FACTS

Archibald and Wilhelmina Fleming were the owners of the property located at 2539 Vallejo Street in San Francisco (the property). Mr. Fleming died on September 5, 1986, bequeathing his one-half interest in the property to the Archibald Fleming and Wilhelmina Fleming Revocable Trust (the Fleming Trust). Lemaitre, Fraser and Davidson, Mr. Fleming's nieces (the nieces) are beneficiaries under the Fleming trust and also under the will of Mr. Fleming.

A few days after Mr. Fleming's death, Ryann Abeel, Mrs. Fleming's immediate neighbor, filed a petition for the appointment of a conservator of the person and estate of Mrs. Fleming. The petition alleged that Mrs. Fleming lacked the legal capacity to bind the estate and that she was unable to provide for her personal needs. The court granted the petition and appointed Abeel and Richard Travis, Mrs. Fleming's attorney, as conservators of the person and estate of Mrs. Fleming, respectively.

In September, 1987, Travis (the conservator) petitioned the court for an order granting the power to sell Mrs. Fleming's one-half interest in the property. The petition alleged that the sale was for the advantage, benefit and best interest of the estate. Notice of the hearing on the petition was served on the nieces.

In October 1987, the conservator petitioned to confirm the sale of Mrs. Fleming's one-half interest in the property to William C. Abeel for the amount of $312,500. Notice of the hearing on the petition was again served on the nieces.

The nieces filed objections to the petition for confirmation of the sale of the property. Thereafter, the conservator filed a petition to cancel the sale of the property. He alleged that Mrs. Fleming's health had improved such that she might be able to return to the property. The court ordered that the petition be canceled and withdrawn. The conservator advised the nieces that he would not sell the property while Mrs. Fleming was living.

Eight months later, in July, 1988, the conservator, however, again petitioned to confirm the sale of the property to Abeel for $335,000. The conservator did not notify the nieces of the sale. The nieces' attorney, David H. Gartshore, however, was called by Y. Salma, a prospective purchaser of the property and a respondent herein, in late July 1988 and told that the property was listed for sale in the “Blue Sheet”.1 Gartshore testified that Salma did not tell him that there was a hearing to confirm the sale on August 10, 1988. Salma testified that he told Gartshore that the hearing would be held August 10.

The hearing on the petition for confirmation of sale of the property was held on August 10, 1988. The court proceeded with the sale after denying the conservator's request for a continuance of the sale and refusing to allow him to withdraw the property from sale. The court confirmed the sale to the Salmas, the overbidders, in the amount of $352,250. The court ruled that the sale was without prejudice to a motion to set the sale aside.

Four days later, Mrs. Fleming died. Under the terms of her will, she bequeathed $25,000 to each of the nieces and the residue of her estate including her one-half interest in the property to the American Cancer Society.

The nieces thereafter petitioned to set aside the sale of the property. They contended that the conservator failed to give notice of the confirmation hearing and failed to inform the court of the nieces' objections to the sale; that he misrepresented the purpose of the sale to the court and made misrepresentations to the nieces regarding future attempts to sell, that he defrauded the estate by selling a partial interest in the property thereby diminishing the value of the interest sold and that the property was sold for inadequate consideration. The American Cancer Society joined in the petition.

A hearing on the petition was held on November 17, 1988. The court indicated its intention to vacate the sale, noting that the property should be sold in its entirety by a special administrator. The court thereafter reconsidered its tentative decision and after further hearing on January 18, 1989, confirmed the sale of the property, finding that it did not have jurisdiction to set it aside. On February 28, 1989, the court entered a revised order confirming the sale of a one-half interest in the property to the Salmas.2

DISCUSSION

I.

Preliminarily, we dispose of respondents' argument that the appeal should be dismissed on the ground that it is taken from nonappealable orders. They argue that the order denying a motion to vacate an order confirming a sale is not an appealable order.

Although the general rule is that an order on a motion to vacate an order confirming a probate sale is generally not an appealable order, the courts have recognized an exception “where the motion to vacate is the only way in which an aggrieved party can protect his rights ․” (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 130, p. 140.) An appeal has been permitted “where one's rights or interests are injuriously affected by a judgment or by an appealable order in litigation to which he is not formally a party, or in which if a party, he has not received due notice, so that as to him the judgment or appealable order is made ex parte.” (Estate of Baker (1915) 170 Cal. 578, 582, 150 P. 989.)

This exception is applicable here. Appellants were not parties to the conservatorship proceeding and were not given notice of the proposed sale of Mrs. Fleming's one-half interest in the property. By moving to vacate the order confirming the sale, appellants proceeded in the only manner available to them to protect their interests in the property.

Respondents' argument, however, that the revised order confirming the sale of the property is not appealable has merit. The revised order simply corrected a clerical error in the description of the property. (See Meyer v. Porath (1952) 113 Cal.App.2d 808, 811, 248 P.2d 984.) It is well settled that where an amendment to an order or judgment merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective, and the amendment does not operate as a new judgment from which an appeal may be taken. (Mulder v. Mendo Wood Products, Inc. (1964) 225 Cal.App.2d 619, 635, 37 Cal.Rptr. 479.) The appeal from the revised order confirming the sale of the property is therefore dismissed.

Respondents further contend that appellants lack standing to appeal because they are not aggrieved parties. This contention also lacks merit. Appellants, the American Cancer Society, as residuary beneficiary under Mrs. Fleming's will and the nieces, as residuary beneficiaries of the Fleming Trust, have an interest in the income realized on the sale of the property. Since the sale of only a one-half interest in the property had the potential of diminishing the value of the remaining interest in the property to the detriment of the estate, appellants had an ““‘immediate, pecuniary, and substantial””’ interest in the order confirming the sale. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d 953, see, also Estate of Sloan (1963) 222 Cal.App.2d 283, 291, 35 Cal.Rptr. 167 [remaindermen of testamentary trust entitled to appeal from order adversely affecting their interest].)

II.

Appellants' principal contention on appeal is that the trial court erred in determining that it lacked jurisdiction to set aside the sale of the property. They argue that the conservator misrepresented facts to the court and failed to provide the required notice thus rendering the order confirming the sale subject to attack under Probate Code section 2103.3

Under section 2103, an order confirming the sale of property in a conservatorship proceeding is final and releases the conservator from claims based upon any act or omission directly approved or confirmed in the order. Section 2103 does not apply where the order is obtained by fraud, conspiracy or misrepresentation of a material fact.4

In Bank of America v. Superior Court (1986) 181 Cal.App.3d 705, 715, 226 Cal.Rptr. 685, the court recognized that section 2103 protects potential objectors who are mislead by a conservator's misrepresentations or omissions into waiving their opportunity to object in a conservatorship proceeding. Under section 2103, a conservator is not entitled to raise a res judicata bar to a transaction which was not fully disclosed to the court. (Ibid; see, also Conservatorship of Coffey (1986) 186 Cal.App.3d 1431, 1437, 231 Cal.Rptr. 421 [finality and releasing provisions of section 2103 negated where conservator fails to inform court of a material fact--that a life insurance policy existed and that he had allowed it to lapse.] Section 2103 also protects potential objectors by limiting its res judicata effect to those orders made pursuant to the provisions of the code sections relating to conservatorships. In Guardianship of Slakmon (1978) 83 Cal.App.3d 224, 234-235, 147 Cal.Rptr. 777, the court held that the trial court had jurisdiction to set aside prior orders awarding attorneys fees in guardianship and conservatorship proceedings where the record showed that the conservator had not complied with proper notice and hearing requirements.

Here, the record reveals that the conservator failed to give proper notice of the proceeding to appellants. The trial court's order confirming the sale was therefore subject to attack under section 2103.

Respondents correctly note that the notice provisions applicable to confirmation of sale hearings in conservatorship proceedings are governed by section 1469. Although section 10308, subd. (c), which sets forth the notice provisions applicable to petitions for confirmation of sale of real property,5 provides that notice be given in accordance with sections 1220 and 1230, section 1469 requires that the references to sections 1220 and 1230 be deemed to be references to sections 1460 et seq.6

Appellants suggest that section 1469 is inapplicable because it applies only to Division 4 of the Probate Code while section 10308 pertaining to petitions for confirmation of sale is contained in Division 7. This analysis ignores the impact of section 2543 of Division 4 which incorporates the provisions of Division 7 “subject to section 1469.”

Under section 1469, the notice requirements of section 1460 rather than those of sections 1220 and 1230 apply here. Under section 1460, the conservator was required to serve notice on “[a]ny interested person who has appeared in the particular matter to which the hearing relates.” Here, the nieces appeared in connection with the conservator's first attempt to sell the property and posed objections to the sale. They were therefore interested persons in the confirmation of sale of the property and entitled to notice of the hearing.7 The requisite notice was not provided here. The order confirming the sale was therefore obtained in violation of the Probate Code. As in Guardianship of Slakmon, supra, 83 Cal.App.3d at p. 235, 147 Cal.Rptr. 777, the conservator's failure to give proper notice allowed him to obtain an order “without any proof to the court that all possible contestants to the [proposed sale] had been notified of the petition and without a proper hearing.”

The trial court erred in denying appellants' petition to set aside the sale. Since we have determined that the sale must be set aside, we need not reach appellants' claims that the conservator misrepresented facts to the court and failed to show any legitimate necessity for the sale and that the conservator's appraisal grossly undervalued the property.

DISPOSITION

The order denying the petition to set aside the sale is reversed. The appeal from the revised order confirming the sale of the property is dismissed. The parties to bear their own costs on this appeal.

FOOTNOTES

1.  The Blue Sheet contains information on probate sales of real estate in San Francisco.

2.  The earlier August 19, 1988 order purported to confirm the sale of the entire property to the Salmas.

3.  All further statutory references are to the Probate Code.

4.  Section 2103 provides in pertinent part as follows:“(a) Unless reversed on appeal, a judgment, order, or decree made pursuant to this division is final and releases the guardian or conservator and the sureties from all claims of the ward or conservatee and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment, order, or decree․ [¶] (b) This section does not apply where the judgment, order, or decree is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment, order, or decree as to any material fact. For the purposes of this subdivision, misrepresentation includes but is not limited to, the omission of a material fact.”

5.  Section 10308 is made applicable to conservatorship proceedings by section 2543 which governs sales under guardianship and conservatorship law. Section 2543 provides in relevant part that “[s]ubject to section 1469, all proceedings concerning sales by guardians or conservators, giving notice of sale, ․ return of sale and application for confirmation thereof, notice and hearing of such application ․ shall conform as nearly as may be, to the provisions of this code concerning sales by administrators ․”

6.  Section 1469 provides as follows: “When a provision of this division applies the provisions of this code applicable to personal representatives to proceedings under this division, a reference to Section 1220 or Section 1230 in the provisions applicable to personal representatives shall be deemed to be a reference to this chapter.” (Emphasis added.)

7.  Respondents assert that the nieces received notice of the sale because their attorney, Gartshore, was called by Salma and told that a sale was pending and listed in the Blue Sheet. While Salma's telephone call may have alerted Gartshore that a sale was imminent, it did not excuse the conservator from complying with the notice requirements of section 1460.

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.