There’s a saying amongst attorneys that “bad facts make bad law.” By extension, “really bad facts” can throw probate procedure into flux by making it harder to qualify for an evidentiary hearing. That’s arguably what happened in Conservatorship of Farrant (2021) ___ Cal.App.5th ___, a decision issued this month by the California Court of Appeal. And make no mistake, the facts in Farrant were terrible.
In 2014, Duane Farrant’s 88-year-old mother travelled from California to Missouri, seemingly for a short, two-week visit with Farrant. While there, she was diagnosed with major neurocognitive disorder and paranoid schizophrenia.
Farrant took over his mother’s finances, which included pension income and rental proceeds from a property in California that he and his mother co-owned. (Farrant’s mother previously was the sole owner but she deeded an interest to Farrant under suspicious circumstances that were not at issue in the court’s decision.)
The Ventura County Superior Court granted a petition by Farrant’s sister to establish a conservatorship over their mother in January 2017. Farrant’s sister also obtained an order requiring an accounting from Farrant regarding his control of his mother’s finances from September 21, 2014, through January 31, 2018. (This order “piggybacked” on an order issued by a Missouri court that had ordered Farrant to account for his mother’s finances from 2014 to 2015, with which Farrant never complied.) The court set a deadline of March 30, 2018 for Farrant to file the accounting.
Farrant did not file the accounting. Nor did he show up at multiple subsequent hearings. The court nevertheless granted his excuse-filled request for an extension of time, and set another hearing for January 29, 2019.
Though Farrant appeared at the January 2019 hearing, the accounting still had not been filed. Now, clearly annoyed, the court ordered a sanction of $1,000 per day until it was.
Farrant finally filed the accounting on May 31, 2019, in clearly deficient fashion. For his mother’s income, it reported only two rental payments (totaling $5,150) and did not include any pension or social security payments. It also directly contradicted a forensic account prepared by the conservator, according to which Farrant had failed to report a “mere” $35,656.76 in retirement income and $50,575 in rental income.
The court granted Farrant additional time to file an amended account, despite observing that he “was not a credible character on anything he has done in this court.”
Things came to a head at a pair of hearings in July 2020. Farrant failed to file the amended accounting, but insisted that he could explain this failure, as well as his previous failures to comply with court orders, at an evidentiary hearing.
But the court had run out of patience. It refused, reasoning that there was nothing in controversy to justify an evidentiary hearing. The court observed that years had now passed in which Farrant had not provided any justification for his conduct or identified any previously unavailable evidence. The court also leveled a sanctions award of $121,000, based on the 121 days that elapsed from the Court’s January 29, 2019 order and Farrant’s filing.
The Second District Court of Appeal was unsympathetic. The Court rejected Farrant’s contention that it was an abuse of discretion for the trial court to deny him an evidentiary hearing.
The appellate court held that the trial court’s denial was proper because Farrant had failed to “specify[ ] the factual issues he intended to litigate at the hearing,” or “explain[ ] why a hearing was necessary,” nor did he “identify the witnesses who would testify at the evidentiary hearing [or] make an offer of proof as to the substance of the evidence he would present at the hearing.”
The Court of Appeal also affirmed the sanctions award, find that Farrant had been given “fair warning.”
Though a $121,000 sanctions award is eye-popping, Farrant was an extreme case, featuring a person who apparently took $80,000 from his incapacitated mother, failed to appear at hearings as ordered, and refused to comply with orders from two separate courts for years at a time. Indeed, as the Court of Appeal noted, Farrant was “fortunate that he was not the subject of contempt proceedings and/or referral to the district attorney’s office for financial elder abuse investigation.”
Less egregious offenders are unlikely to be slapped with such heavy sanctions, though the ruling is a good reminder to comply with court orders in a timely fashion.
The import of Farrant is that a party may have to make an offer of proof, identify the witnesses who will testify, and generally explain why a hearing is necessary in order to secure the right to an evidentiary hearing with witness testimony.
It has long been assumed in California trust and estate litigation practice that parties, upon a general request, are entitled to an evidentiary hearing on any contested matter. The Fourth District Court of Appeal held as much just a few months ago in Dunlap v. Mayer, when it ruled that a trial court had abused its discretion by dismissing a contested petition without an evidentiary hearing, citing Probate Code section 1046’s mandate that “[t]he court shall heard and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.”
The Farrant court, however, seemingly set the bar higher to get an evidentiary hearing. Does it mean that a lawyer must make a more elaborate request for an evidentiary hearing to avoid having the court decide the matter based on the papers submitted?
It is unsurprising that, after years of deception, delay, and evasion, the trial and appellate courts in Farrant saw no reason for an evidentiary hearing: it was just one more way for Farrant to forestall the consequences of his actions. But the ruling has left trust and estate litigators driving into the fog as to what showing they must make to be assured of an evidentiary hearing. And, as with summer fog on the California coast, it may take a while for new appellate guidance to clear the air.