Opinion
F052759
4-24-2008
Conservatorship of the Person and Estate of JOHN OHANESIAN. MARTIN DEDEKIAN, Petitioner and Appellant, v. ROSE BALES et al., Objectors and Respondents.
Magarian Law and Mark D. Magarian for Petitioner and Appellant. Ruth P. Lind; Romero, Park & Wiggins and H. Troy Romero for Objectors and Respondents.
NOT TO BE PUBLISHED
This case involves a nephews petition to appoint a conservator of the person and estate of his 91-year-old uncle. At the trial, the probate court heard testimony from two doctors, the proposed conservatee, his sister, and the nephew.
The court denied the petition and subsequently denied a motion for new trial. The nephew appeals, claiming the court committed reversible error by (1) denying his motion for an examination of the proposed conservatee by a third doctor, (2) denying his motion to continue the trial, and (3) sustaining various evidentiary objections.
We conclude that the probate court (1) did not abuse its discretion in denying the motion for another medical examination, (2) properly denied the motion for a continuance of trial because there was no showing of good cause, and (3) did not commit prejudicial error by excluding certain testimony from the trial. Furthermore, the court did not err by denying the motion for new trial.
Accordingly, the order denying the petition will be affirmed.
FACTS
Respondent John Ohanesian was 91 years old at the time the petition for appointment of a probate conservator was filed. Ohanesian is not married and never had any children. Ohanesian has two living siblings—his brother Gabriel Ohanesian and his sister Rose Bales.
There are types of conservatorships other than probate. For example, the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) provides for the appointment of a conservator for gravely disabled persons (Welf. & Inst. Code, § 5350).
Appellant Martin Dedekian is Ohanesians nephew and godson. He is the son of Ohanesians deceased sister, Blanche Dedekian. Dedekian has three sons in their 20s.
Respondent Rose Bales used to live about a quarter of a mile away from Ohanesians home. Recently, she moved to San Diego where she lives with her only child, respondent Rose Lee Avedesian.
Ohanesian, Rose Bales, and Rose Lee Avedesian collectively are referred to as respondents in this opinion.
Respondent Gabriel Ohanesian has not made an appearance in this appeal, though he joined the opposition to the appointment of a conservator. He lives approximately two miles from Ohanesians home. Gabriel Ohanesian has four adult children—Stephen, Robert, Darlene and Charlene.
Ohanesian lived in a two-story house on an 80-acre parcel of land with a Fresno address. He testified that he lived in the house with his mother and then lived there alone after she died. Around 1974 or 1975, Ohanesian put up a cyclone fence with three strands of barbed wire around the residence and had a padlock on the gate. At that time, he gave Dedekian a key to the padlock.
Dedekian lives about 200 yards south of Ohanesian, on the other side of the road.
Dedekian testified that his relationship with his uncle had been cordial but had diminished over recent years. Around 1998, Ohanesian changed the lock on his gate and it was more difficult to see him. After 1998, it was hard for Dedekian to get hold of Ohanesian. He had to catch Ohanesian going in or out of his gate, coming down the road on his tractor, or talk to him in his yard.
In January 2004, Ohanesian left his groceries by his gate, walked away from his home, was picked up by police, and was taken to University Medical Center (UMC). UMC records stated that Ohanesian said he fell, but he denied being lost. A social workers report stated that Ohanesian (1) lived alone, (2) cooked, did housekeeping and did shopping for himself, and (3) refused to hire someone for assistance. Dedekian testified that Ohanesian refused to hire someone and said he did not need anybody to take care of him.
In December 2005, Ohanesian was hospitalized at Tulare District Hospital. Ohanesian said he went to a store about a mile from his home for groceries. He ended up in Tulare, where he hit a parked car and was taken to be examined at the hospitals emergency room. Ohanesian was not hurt in the accident and Dedekian took him home. The physicians record described Ohanesian as alert, responsive, but confused about the city. The physicians record listed "MVC, dementia" under diagnostic impression.
The record reflects that during 2004 through 2006, Ohanesian reported six burglaries and one incident of vandalism at his residence. During one of the incidents, a man pulled one of Ohanesians shotguns away from him, ransacked the second floor, and took some bottles of wine. Another time, Ohanesians fence had been cut with bolt cutters. In November 2004, a grinder and chainsaw were stolen and his house vandalized. In January 2006, vandals broke the windshields and headlights of all the vehicles in Ohanesians yard with one of his axes and scattered his food outside.
On August 14, 2006, Dedekian went to Ohanesians home to check on him. Dedekian received no response to his knocks on the door and windows. He was able to use a ladder and enter the house through a second story window that was open. He found Ohanesian lying on the floor of the living room, wearing only a shirt. Ohanesian did not respond when Dedekian called out his name. Dedekian telephoned paramedics . A deputy sheriff also came to the home.
Dedekian testified that adult protective services told the sheriff deputy to take photos and said that he should take photos, too. The photos included in the appellate record show that the interior of the house was cluttered with trash. Dedekian testified that in parts of the house it appeared that things had been piled up to form barricades.
The paramedics took Ohanesian to UMC. Ohanesian was suffering from dehydration and malnutrition. He had a large bruise on his right shoulder. UMCs assessment of Ohanesian included dementia.
On August 25, 2006, Ohanesian was transferred to Sanger Convalescent Hospital. The nurses notes reflect that Ohanesian was very confused during his first days at Sanger Convalescent Hospital and that he had problems with his abdominal feeding tube. For example, notes from August 29, 2006, indicate that Ohanesian talked softly and constantly to himself, that he did not comprehend what was said to him, and that he was very confused and made no sense. Later that morning, he started to yell at the top of his voice, but staff could not understand what he said.
When Ohanesian was transferred to Sanger Convalescent Hospital, Tarlochan Tagore, M.D., became his treating physician. Dr. Tagore is certified in internal medicine and trained in geriatrics. He has worked at Sanger Convalescent Hospital for about 26 years. Dr. Tagore saw Ohanesian about once a month to personally conduct a review of his health, medications, and any other problems that might have arisen.
During Dr. Tagores initial evaluation of him, Ohanesian was very confused, not very cooperative, and reluctant to be physically examined. At the time, Ohanesians heart and lungs were all right and he had a feeding tube in his abdomen. Dr. Tagore testified that when Ohanesian was in bed his hands were shaking, which was typical of Parkinsons disease. Dr. Tagore also testified that Ohanesian did not show deficiencies of a stroke patient, "but was more like a patient who has Parkinsons disease with dementia, looks like very confused and hes not understanding[,] like a person who[se] mind is not all there."
In late September 2006, Dr. Tagore completed a "Capacity Declaration—Conservatorship" based on a September 12, 2006, examination of Ohanesian. Dr. Tagores declaration stated (1) Ohanesian was medically unable to attend a court hearing for the foreseeable future and (2) he suffered from "dementia—severe" and had had multiple strokes. Dr. Tagore based his diagnosis, among other things, on Ohanesians inability to cooperate; his limited ability to function, such as understand and perform simple commands; very poor memory; and incontinence of both bowel and bladder. Dr. Tagore also testified that Ohanesian "did not show me very much significant improvement in his mental function."
At trial, Dr. Tagore testified that in certain situations poor mental function could be improved. As an example, he indicated that improving nutrition and correcting electrolyte imbalances could result in improvement. He also testified that Alzheimers disease and Parkinsons disease were progressive and that "[d]ementia is irreversible."
The social service progress notes from the convalescent facility dated November 22, 2006, reflect the results of a quarterly review of Ohanesian and state that he "is coming along quite well. His mood and behavior has been very pleasant, smiles more." The notes also stated:
"Mr. Ohanesians over all appearance is happy and content. Has had frequent visits from his family. Mr. Ohanesian is currently having some family issues and has stated to a few staff members that his family visit only because they want him to change his will. Mr. Ohanesian appears very alert, and oriented enough to know that changing his will is something he does not want to do. Has stated that he will never change his will, and not giving anybody any of his money, per charge nurse."
On January 12, 2007, Alex Sherriffs, M.D., completed a "Capacity Declaration—Conservatorship" regarding Ohanesian. Dr. Sherriffs expressed the opinion that Ohanesian could attend the court hearing. Dr. Sherriffs completed the forms questions regarding mental functions, including alertness and attention, information processing, thought disorders, and ability to modulate mood and effect. Dr. Sherriffs responded "no apparent impairment" or "moderate impairment" to these questions. Dr. Sherriffs indicated that Ohanesian (1) had mild dementia, (2) needed to be in an environment that provides 24-hour supervision and assistance as needed, (3) required assistance with his medication because of his memory impairment, and (4) required ongoing assistance with activities like shopping. Dr. Sherriffs also indicated that Ohanesians needs for care and assistance were likely to gradually increase in the future. His testimony at trial was similar.
Dr. Sherriffs testified that Ohanesian scored 24 out of 30 points on the Folstein or Mini Mental State Exam (MMSE). He stated that scores in the 20s roughly correspond to mild dementia, scores from 20 to 10 to moderate dementia, and scores below 10 to severe or late stage dementia.
Dr. Sherriffs also testified that having the patient comfortable and cooperative is important to the MMSE and can explain variation in test scores. Dr. Sherriffs testified that improvement from a diagnosis of severe dementia to mild dementia within four months "would suggest something dramatic happened in the interim, whether someone had been over-medicated or had another intercurrent medical problem at the time they were diagnosed with a severe dementia, suggesting their function was impaired by that other process."
When asked how Ohanesian could score four out of a maximum of five points with respect to orientation as to the year, season, date, day and month during Dr. Sherriffs exam on January 12, 2007, and score a zero on the same exam questions when asked by a nurse 12 days later, Dr. Sherriffs replied: "Either something else was going on medically at the time he scored 0; he had had a sedative recently or had some other intercurrent illness, urinary trac[t] infection or something like that that was interfering with his performance, his potential performance, or he was not cooperating, he was anxious or did not want to do the test."
During Dr. Sherriffs physical examination of Ohanesian, he noted an abdominal scar. Dr. Sherriffs testified that Ohanesian "indicated that [the scar] was from force-feeding, `I wouldnt eat. Why, thats what Id like to know. Thats what I want to find out."
Ohanesian also told Dr. Sherriffs that he had been in the Sanger Convalescent Hospital for four to five years, instead of months. Dr. Sherriffs stated that was consistent with the disorientation noted in the Folstein.
In Dr. Sherriffs opinion, Ohanesian had sufficient capacity to make his own decisions about whether to refuse medical treatment, where to live, and similar questions.
After Dr. Sherriffs examination of Ohanesian, Dr. Tagore directed a nurse to administer a MMSE to Ohanesian. She attempted to complete the test on January 24, 2007, and the first time Ohanesian refused to answer any questions. Later, the nurse was able to get Ohanesian to respond to a few questions and gave him a score of four out of 30 questions. Dr. Tagore testified that a score of less than 10 put the patient into a category of severe dementia. Dr. Tagore also testified that he directed the test to be administered on his own initiative because he wanted to know Ohanesians present status for the court hearing.
PROCEEDINGS
On October 5, 2006, Dedekian filed (1) a petition for appointment of probate conservator of the person and estate of Ohanesian and (2) a petition for appointment as temporary conservator. The petition for appointment of a probate conservator estimated the value of Ohanesians real property holdings at $28 million and his personal property at approximately $350,000.
The court filed an order appointing Dedekian as temporary conservator on October 10, 2006.
The court appointed Ruth P. Lind as attorney for Ohanesian on October 18, 2006. She filed a six-page report with the court on November 15, 2006. Attached to her report was a document that she prepared at Ohanesians request and he signed. The document was dated November 13, 2006, and stated that (1) Ohanesian revoked his will dated February 21, 1973, and (2) Dedekian should not serve as executor or administrator of his estate.
On November 21, 2006, a hearing was held on the petition for appointment of conservator of the person and estate of Ohanesian. The court appointed the Fresno County Public Guardian as temporary conservator of the person and estate of Ohanesian pending trial and set a trial date of January 30, 2007. As a result, Dedekian no longer served as temporary conservator. The court directed the public guardian to arrange an independent medical examination of Ohanesian.
The public guardian arranged for Ohanesian to be examined by Dr. Sherriffs. Dr. Sherriffs examined Ohanesian and completed a "Capacity Declaration-Conservatorship" on January 12, 2007.
On January 18, 2007, the depositions of Rose Bales and her daughter were taken.
On January 25, 2007, Rose Bales submitted motions in limine and a trial brief that objected to the appointment of a conservator for Ohanesian and objected to Dedekian acting as conservator if one was appointed. Gabriel Ohanesian joined in the motions in limine and also filed a trial brief.
On January 30, 2007, the parties stipulated to bifurcation of the trial. The first trial addressed whether a conservator should be appointed for Ohanesian. If that question was answered in the affirmative, then a second trial would have been held to determine if Dedekian should be appointed conservator.
The trial was held on January 30 and 31, 2007. Dr. Tagore testified by telephone. Dr. Sherriffs, Ohanesian, Dedekian and Rose Bales also testified. After the close of evidence, Dedekians attorney made an oral motion for the court to order an independent examination of Ohanesian by a board-certified forensic psychiatrist or neurologist. The court denied the motion.
On February 20, 2007, the court filed a ruling and statement of decision on petition for conservatorship. The court concluded that Dedekian did not establish by clear and convincing evidence that Ohanesian was unable (1) to provide properly for his own personal needs for physical health, food, clothing or shelter or (2) to manage his own financial resources or resist fraud or undue influence. Based on these conclusions, the court denied the petition for appointment of a conservator.
On March 7, 2007, Dedekian filed a motion for new trial pursuant to Code of Civil Procedure section 657. The motion for new trial contended that the trial court erred in making numerous evidentiary rulings and by denying Dedekians motion to order an independent examination of Ohanesian by a board-certified forensic psychiatrist or neurologist. The motion for new trial was supported by a declaration of Dedekians attorney, which included several attachments.
On April 20, 2007, Dedekian filed a notice of appeal.
On May 8, 2007, the court denied Dedekians motion for new trial.
DISCUSSION
I. Motion for an Independent Medical Examination
A. Contentions of the Parties
Dedekian contends that the court abused its discretion by denying his motion for an independent examination of Ohanesian by a board-certified forensic psychiatrist or neurologist. In particular, Dedekian argues that "when the testimonies of the two expert witnesses were at times inconsistent, and one of them was unable to fully and accurately testify," the denial of a further examination constitutes an abuse of discretion.
Respondents contend that such an examination is not required by law, any such motion should have been made before trial, and Dedekian has not shown any prejudice.
B. Application of Abuse of Discretion Standard
One way a court can abuse its discretion is by failing to apply the proper legal standards in reaching its decision. (See Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344.) Dedekian has cited, and we are aware of, no statute, case law, or secondary authority for the proposition that a third medical examination should have been conducted because the first two exams produced conflicts or inconsistencies. Thus, the court did not abuse its discretion by violating or misapplying a rule of law.
The general test for whether a trial court has abused its discretion is whether "the ruling was whimsical, arbitrary, or capricious, i.e., [whether] the trial court exceeded the bounds of reason. [Citation.]" (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [trial court did not exceed bounds of reason when it granted relief from default judgment].)
In this case, Dedekian has not established that the denial exceeded the bounds of reason. In particular, the court reasonably could have concluded that the opinion generated by a third doctor would not have aided it significantly because it already had the views of two doctors and had observed Ohanesian testify. In addition, Dedekian was aware of the results of Dr. Sherriffs examination before trial, as well as its conflicts or inconsistencies with the results of Dr. Tagores exams, and waited until the close of the trial to make the motion. In these circumstances, there was more than one reasonable way to rule on the motion. We cannot conclude that the only reasonable ruling was to continue the proceeding and order a third doctor to examine Ohanesian.
Accordingly, we do not reach the question whether Dedekian has demonstrated that the denial of his request was prejudicial.
II. Request to Continue Trial
A. Factual Background
On the morning of January 30, 2007, the court contacted Dr. Tagore by telephone. The court and the parties talked to Dr. Tagore about his availability to come to the court and testify and, alternatively, when in the future he would be able to attend court. Dr. Tagore indicated that (1) he could not come that day because he recently had eye surgery and had a doctors appointment at 1:00 p.m., (2) he thought there was a good chance he could attend court after 10 days, and (3) February 8th would be fine.
Immediately after that discussion with Dr. Tagore, the court stated there were two alternatives: "proceed at this point without his testimony or continue the whole trial until February 8." Counsel for Rose Bales and Rose Lee Avedesian stated the testimony of Ohanesian would demonstrate independently that a conservatorship was not necessary. He also stated that the court could take Ohanesians testimony and determine whether Dedekian could meet his burden of proof.
Counsel for Dedekian argued that the testimony of Ohanesians treating physician was imperative to the proceeding, that the physician had been subpoenaed, and that but for the physicians unanticipated eye surgeries, he would have been present for the trial. He requested "that we delay the trial for that purpose."
Counsel for Rose Bales and Rose Lee Avedesian then stated that he was against continuing the matter because he and his clients had travelled from San Diego and a lot of cost and preparation had been put into the matter. He stated that the matter should keep going forward and (1) the testimony of Dr. Tagore could be taken by telephone or (2) everything could be done except Dr. Tagore and then it could be completed later with him appearing by telephone from San Diego. Counsel for Ohanesian agreed that as much should be done as possible and she thought a telephone examination of Dr. Tagore could be done if necessary.
After further discussion, the following exchange occurred.
"THE COURT: Well, Im not sure we can proceed with Dr. Tagores testimony today because hes going in for surgery at 1:00 oclock, isnt he?
"MS. LIND: Unless we did it now if hes available by telephone now.
"THE COURT: Do we have speaker phone in here?
"MR. MAGARIAN: I would volunteer the use of my cell phone, Your Honor.
"THE CLERK: There is[.] I just have to see — [¶] ... [¶]
"MR. MAGARIAN: We have to bear in mind that hes at home so he doesnt have his medical records but hell be testifying based upon his percipient observations.
"THE COURT: Counsel, were going to do a test on our speaker phone here to see if its working."
After the test, the court reached Dr. Tagore and he was asked if it was okay if they went ahead and took his testimony at that time. Dr. Tagore said it was okay and the clerk administered the oath.
The foregoing demonstrates the following points. When Dedekian addressed the two alternatives proposed by the court, he requested a continuance. The other parties did not accept the two alternatives proposed by the court as the only way to deal with the problem created by Dr. Tagores medical concerns. As a result, the possibility of Dr. Tagore testifying by telephone was discussed and implemented. At no time did Dedekian object to Dr. Tagore testifying by telephone.
B. Principles of Law Applicable to Requests to Continue Trial
Probate Code section 1827 provides that the court "shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions ...."
Based on this provision, we conclude that the rules generally applicable to a request to continue a trial apply in this case. Specifically, we conclude that California Rules of Court, rule 3.1332, which addresses motions and applications for continuance of trial, is applicable to Dedekians request for a continuance.
All further references to rules are to the California Rules of Court.
Rule 3.1332 provides that dates assigned for trial are firm and continuances of trial are disfavored. The rule also provides that "each request for a continuance must be considered on its own merits." (Rule 3.1332(c).) A court has the discretion to "grant a continuance only on an affirmative showing of good cause requiring the continuance." (Ibid.) Circumstances that provide good cause for a continuance include the unavailability of an expert witness because of illness or other excusable circumstances and a "partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts." (Rule 3.1332(c)(1) & (6).)
In considering a trial continuance based on the unavailability of an expert witness or essential testimony, the trial court "(d) ... must consider all the facts and circumstances that are relevant to the determination ..." including "(1) [t]he proximity of the trial date; [¶] ... [¶] (3) [t]he length of the continuance requested; [¶] (4) [t]he availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) [t]he prejudice that parties or witnesses will suffer as a result of the continuance; [¶] ... [¶] (10) [w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) [a]ny other fact or circumstance relevant to the fair determination of the motion ...." (Rule 3.1332.)
C. Application of Good Cause Requirement to This Case
Dedekian has not referred to the good cause requirement of rule 3.1332(c) in phrasing his arguments regarding the request to continue the trial. Nevertheless, it appears that he is arguing, in effect, that the grounds listed in subdivision (c)(1) or subdivision (c)(6) of that rule existed in this case.
1. Unavailability of an expert witness
Rule 3.1332(c)(1) states that good cause includes the "unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances."
We conclude that there was no showing of good cause based on this ground because Dr. Tagore was available to testify by telephone. Therefore, the request to continue the trial could not have been granted on that ground.
2. Inability to obtain essential testimony
Rule 3.1332(c)(6) states that good cause includes a "partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts."
Dedekian argues that Dr. Tagore was "forced to testify without his medical records that documented the most relevant and recent written data and observations relating to Ohanesians condition."
The problem with Dedekian asserting this ground on appeal is that it was not a ground that was presented to the court (1) as part of the request for a continuance or (2) as an objection to proceeding with Dr. Tagores testifying by telephone. Because this ground was not presented to the court as a reason for granting a continuance, we cannot conclude that the good cause showing required by rule 3.1332(c) was ever met. Because no showing of good cause was made, the court did not abuse its discretion by denying the request for a continuance of trial. (Cf. Jurado v. Toys "R" Us, Inc. (1993) 12 Cal.App.4th 1615, 1618-1619 [two doctors who were subpoenaed failed to appear at trial; affirmative showing of good cause was made and, thus, trial court abused its discretion in denying motion to continue].)
We do not construe Dedekians counsels statement that "We have to bear in mind that hes at home so he doesnt have his medical records but hell be testifying based upon his percipient observations" as an objection to proceeding with Dr. Tagore testifying by telephone or as the identification of a ground upon which his earlier request for a continuance was based.
III. Evidentiary Rulings
A. Standard of Review
The parties agree that rulings on the admissibility of evidence are reviewed for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717 ["appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence"].)
B. Contentions of the Parties
Dedekian contends that the court erred by not allowing him to (1) fully inquire into Ohanesians ability to resist fraud or undue influence, (2) fully question Rose Bales, and (3) fully question Ohanesian about (a) his relationship with his sister, (b) the lawsuit he filed against his sister in 1999, and (c) his 1973 will and its purported revocation.
Respondents contend that (1) the evidence Dedekian sought to introduce was not relevant to the issue being tried, (2) any erroneous exclusion of evidence was not prejudicial, and (3) Dedekian invited the omission of certain evidence or, alternatively, waived any potential error relating to that evidence.
C. Dedekian Did Not Invite or Waive Erroneous Evidentiary Rulings
Generally, an appellant invites the erroneous exclusion of evidence when he or she raises an improper objection to the evidence and the objection is sustained.
"`Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance. [Citation.]" (Kessler v. Gray (1978) 77 Cal.App.3d 284, 290.)
In this case, respondents assertion of invited error and waiver is based on Dedekians decision not to seek the admission of exhibits C, Q, R, S, T and U, which were attached to his trial brief.
Exhibit C was a copy of a complaint that Ohanesian filed in December 1999 against Rose Bales, a funeral home, and a cemetery. The complaint sought declaratory relief, damages for the infliction of emotional distress, and the disinterment of the body of Rose Baless husband, who was buried in a plot that Ohanesian alleged he owned. The complaint alleged that the interment of Ohanesians brother-in-laws remains near his anticipated final resting place and in close proximity to his beloved mothers remains had caused Ohanesian great emotional distress.
Exhibits Q through U were excerpts from depositions. Exhibits S, T and U were excerpts of the depositions of Rose Bales, Ohanesian, and Gabriel Ohanesian, respectively, taken in connection with the 1999 lawsuit. Exhibits Q and R were excerpts from the deposition of Rose Lee Avedesian and Rose Bales, respectively, taken in this proceeding.
Dedekians decision not to move for the admission of these six exhibits into evidence occurred after all the testimony had been presented. Thus, Dedekians decision occurred well after the court had sustained objections to questions asked of witnesses. It is the rulings on those objections—not the exclusion of exhibits—that Dedekian has challenged in this appeal.
Respondents theory of invited error is unsound and unsupported by authority. First, the doctrine of invited error is based on the idea that appellants may not complain of an error for which they bear some responsibility—that is, an error they helped induce. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 8:244 to 8:245, pp. 8-140 to 8-141.) Consequently, it is unsound chronologically to contend that a partys failure to introduce exhibits at the close of a case "invited" erroneous rulings on evidentiary objections made earlier in the case. Respondents argument puts the cart before the horse—that is, it reverses the sequence of the purported invitation and the error.
Second, respondents have cited no authority for the proposition that an erroneous evidentiary ruling can be invited by a litigants subsequent conduct. We will not adopt such a proposition in this case.
With respect to respondents argument of waiver, the California Supreme Court has defined waiver as the intentional relinquishment or abandonment of a known right or privilege. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) We will not infer that Dedekian actually intended to relinquish his right to challenge the courts prior evidentiary rulings when he excluded the six exhibits from his request to have exhibits admitted into evidence. Substantial evidence does not support drawing such an inference regarding intent as a matter of fact. Also, respondents have cited no case law in which such an inference was drawn as a matter of law. We will not draw such an inference as a matter of law because of (1) this lack of authority and (2) the ill effect such an inference would have in future cases. To avoid the inference, trial counsel would have to offer exhibits that were related to lines of questioning that were closed by evidentiary rulings, which would waste time.
In summary, we reject respondents theories that Dedekian invited any erroneous exclusions of evidence or that he waived his right to challenge those exclusions on appeal.
D. Compliance with Rules Regarding Appellate Briefing
1. Contents of appellants opening brief
Pages 23 and 24 of Dedekians opening appellate brief contain the following contention:
"On several occasions throughout the trial, however, [Dedekians attorney] was entirely precluded from introducing evidence relevant to potential fraud or undue influence and Ohanesians susceptibility thereto. (See 2 CT 447-451 [(Dedekians attorney) Declaration]; 2 CT 454-505 [(Dedekians attorney) Declaration Exhibits].)" (Boldface omitted.)
That section of the brief does not identify the particular rulings that Dedekian contends were erroneous. Instead, it appears Dedekian attempts to identify those errors by referencing the declaration his attorney filed to support the motion for a new trial. The only citations to the record in this section of the brief are the block cites to the attorneys declaration and related exhibits.
Pages 29 and 30 of Dedekians opening brief include four paragraphs under the heading "The Trial Court erred on various evidentiary rulings." (Boldface and underscoring omitted.) The first paragraph asserts the courts "erroneous evidentiary rulings throughout the trial warrant a new trial to determine whether Ohanesian needs a conservator." The erroneous rulings are described further in the general assertion that "the Trial Court did not allow [Dedekians attorney] to fully inquire into Ohanesians ability to resist fraud or undue influence ...." The most specific descriptions stated:
"[Dedekians attorney] was prohibited from fully questioning Ohanesian about his relationship with his sister Rose, the lawsuit he filed against her in 1999, or his 1973 Will and its purported revocation .... Furthermore, the Trial Court prevented [Dedekians attorney] from fully questioning Rose, repeatedly sustaining opposing counsels objections on the grounds of relevance, and even where no grounds had been cited. (2 CT 450.)"
The only citation to the record—"(2 CT 450)"—is to a page of the declaration of Dedekians attorney in support of the motion for a new trial.
2. Rule 8.204
The content and form of appellate briefs are governed by rule 8.204. For example, rule 8.204(a)(1)(C) provides that appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." This provision has been interpreted to require exact page citations—a requirement that is not satisfied by citation of a block of pages. (E.g., Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [interpreting a predecessor of rule 8.204].) In addition, we interpret the phrase "a matter in the record" used in rule 8.204(a)(1)(C) to include purportedly erroneous evidentiary rulings. Thus, an appellate brief must provide a citation to the volume and page of the record where each challenged evidentiary ruling appears. The contention in a brief that "various" evidentiary rulings were erroneous is not sufficiently specific.
Another requirement concerning the content of appellate briefs was recognized by California Supreme Court: "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. [Citations.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 20 (Soukup) [applying former rule 14, predecessor of rule 8.204].)
3. Application of rule 8.204 to this case
The portions of Dedekians appellate briefs that challenge evidentiary rulings do not comply with rule 8.204 because they do not (1) identify with sufficient particularity the evidentiary rulings that he contends were erroneous or (2) provide the required citations to the record. Instead, it appears that Dedekian attempted to fulfill these requirements by referring to the attorneys declaration filed to support his motion for new trial.
First, the content requirements for an appellate brief cannot be satisfied using incorporation by reference, even when the document incorporated by reference is included in the appellate record. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2.)
Second, the citations to the record set forth in Dedekians appellate briefs consist of a block citation to five pages of an attorney declaration, a block citation to 51 pages of exhibits attached to that declaration, and a reference to a single page of the declaration. These citations do not comply with the requirements of rule 8.204(a)(1)(C) because they do not identify the page in the record where the particular errors (i.e., "the matter") appear.
Furthermore, even if incorporation by reference were an accepted method of appellate advocacy, the page and line citations in the attorneys declaration would be insufficient because they are citations to a version of a reporters transcript that is different from the official reporters transcript filed with this appeal.
The consequence that flows from the failure to comply with the rule regarding the contents of an appellate brief was identified by the California Supreme Court in Soukup. In that case, the court disregarded the matter purportedly incorporated into the appellate brief by reference. (Soukup, supra, 39 Cal.4th at p. 295, fn. 20.)
Similarly, we reject Dedekians contentions regarding evidentiary errors because of the failure to comply with rule 8.204.
E. Excluded Evidence
As a separate and alternate basis of our disposition of the evidentiary issues raised by Dedekian, we will determine whether the challenged evidentiary rulings contain reversible error.
1. Ohanesians 1973 will and its purported revocation
Dedekian contends he was not allowed to fully question Ohanesian about his 1973 will and its purported revocation.
When Dedekians attorney cross-examined Ohanesian, he asked Ohanesian if he had a will. The court sustained an objection to the question. Dedekians attorney argued that the question was relevant to the inquiry under Probate Code section 1801, subdivision (b) regarding the proposed conservatees ability to manage his financial resources and resist fraud or undue influence. Based on that argument, the court allowed Dedekians attorney to continue. In further cross-examination, Ohanesian testified that he had a will and that he revoked it. Ohanesian was unable to say whether or not that will had been made in 1973.
Dedekians attorney also asked Ohanesian whether he told any staff at the hospital that members of his family only visited because they wanted him to change his will. In the midst of Ohanesians answer, opposing counsel objected. The court sustained an objection to the question. Again, Dedekians attorney argued the question was relevant under Probate Code section 1801, subdivision (b). The court responded, "All right. You may proceed. Hes answered the question." Dedekians attorney said he did not hear the answer. As a result, the question was repeated to Ohanesian and Ohanesian said, "Nobody has asked me to change a Will, that is a damn lie." He also added, "And nobody has asked me about my Will."
The reporters transcript does not reflect every word of Ohanesians answer because it was interrupted by the objection. Nonetheless, the objecting attorney reiterated Ohanesians answer by observing that "if the court reporter got the answer, he already said that nobody ever brought up the Will so if the answer is there, the court can decide whether or not but I dont think we need to go further into the inquiry."
Dedekians attorney then stated, "The question was did he tell staff." Ohanesian replied, "Unless I told them, which I havent." The court then stated, "I think his answer is sufficient."
Paragraph 30 of the declaration of Dedekians attorney in support of his motion for new trial asserts that he was not allowed "to inquire further into the issue." (Underscoring omitted.) We conclude that the use of the words "the issue" in this assertion is somewhat ambiguous and, regardless of which interpretation is adopted, the assertion is not accurate.
One reason rule 8.204 requires specificity is to avoid this type of ambiguity.
On the one hand, if Dedekians attorney used the term "the issue" to mean whether Ohanesian told staff, then he was allowed to inquire further. In particular, the court reversed its ruling on the objection and allowed Dedekians attorney to proceed. The attorneys question was repeated. Ohanesian gave an indirect answer, stating that he had not been asked about his will or asked to change it. Dedekians attorney asked whether he told staff and Ohanesian replied, "Unless I told them, which I havent." Thus, Dedekians attorney actually was allowed to ask whether Ohanesian told staff and Ohanesian answered that he had not told staff. As a result, further questions to Ohanesian about what he told staff about his will would have been duplicative.
On the other hand, if Dedekians attorney used the term "the issue" to mean something broader, he has read too much into the courts statement that Ohanesians answer was sufficient. We do not interpret the courts statement that "I think his answer is sufficient" as foreclosing additional questions about the revocation or attempts to influence Ohanesian. Instead, we interpret that statement to mean that the answer Ohanesian gave to the particular question about what he told staff was sufficient. Therefore, the court only foreclosed a repetition of the prior question. Restricting repetitious questions is not an abuse of discretion. (E.g., In re Ryan N. (2001) 92 Cal.App.4th 1359, 1387 [sustaining objections to repetitive questions was not an abuse of discretion].)
Paragraph 34 of the declaration of Dedekians attorney in support of his motion for new trial asserts that the court did not allow him to inquire into the reasons why Ohanesian revoked his will.
This assertion also contradicts the record. Our review of pages 170 through 173 of the reporters transcript shows that (1) Dedekians attorney persuaded the court to allow an answer to all of the questions that he actually asked about the will and its revocation and (2) he never asked Ohanesian why he revoked his will.
The inaccuracy of this and the prior assertion may explain why the appellate brief does not contain a specific discussion of each evidentiary ruling challenged. When the specific details were examined in context, the weakness of the two assertions became apparent.
Paragraph 34 of the declaration of Dedekians attorney also asserts that the court did not allow him to inquire into the content of Ohanesians will. This assertion is accurate. The court directed Dedekians attorney as follows: "Counsel, dont go into the contents [of the will]." Dedekians attorney, however, did not object to this restriction. Nevertheless, we conclude that any error in the restriction imposed by the court was preserved for appeal. (See Evid. Code, § 354, subd. (a) [evidentiary error preserved if relevance of the evidence was made known to the court "by any other means"].)
Based on the foregoing, the contention that the court erred by prohibiting Dedekian from fully questioning Ohanesian about his 1973 will and its purported revocation requires the further examination of only one evidentiary ruling of the court—the ruling prohibiting questions about the contents of the will.
We will assume that the contents of the will were relevant to the issue whether Ohanesian was able to resist fraud or undue influence and proceed to the question whether the exclusion of this evidence was prejudicial.
Dedekian has made the conclusory statement that a full questioning of Ohanesian "would have undoubtedly exposed Ohanesians inability to resist fraud or undue influence." He has not explained, however, the connection between the contents of the will and Ohanesians alleged inability. We will assume that, if he had been asked about the contents, Ohanesian would have replied that the revoked will left all his property to Dedekian. Even with this assumption, the connection between the contents and the conclusion that Ohanesian was not able to resist undue influence is not apparent. Part of that connection might have been supplied if Ohanesian had been asked why he revoked the will. But, that question was not asked.
Consequently, Dedekian has not established the restriction actually placed on his cross-examination of Ohanesian about the contents of his will resulted in a miscarriage of justice. (See Evid. Code, § 354 [erroneous exclusion of evidence requires reversal only if a miscarriage of justice resulted].)
2. Ohanesians 1999 lawsuit against his sister
Dedekian contends he was not allowed to fully question Ohanesian about the lawsuit that he filed in 1999 against his sister, Rose Bales.
While cross-examining Ohanesian, Dedekians attorney asked if he knew whether Rose Baless husband was buried next to Ohanesians mother. Ohanesian answered that he did not know. Dedekians attorney then asked, "Do you remember filing a lawsuit concerning—" The question was interrupted by an objection, which the court sustained. Ohanesian then stated, "I did not file a lawsuit, thats a damn lie."
For purposes of this opinion, we will assume that the information sought was relevant to the issue regarding the need for a conservatorship and that the court erred in sustaining the objection. Based on these assumptions, we will proceed to the question of prejudice.
Dedekian has not shown how his inquiry was harmed. The answer that Ohanesian gave after the objection was sustained and, more importantly, his earlier answer that he did not know if his brother-in-law was buried next to his mother show that Ohanesian did not remember the basis for the lawsuit. Thus, it appears that further inquiry into this topic would have accomplished little more than confirm what already had been shown—Ohanesian did not remember the dispute.
In addition, Dedekian has not explained how a further inquiry into the topic would have provided additional information to the court and how that information would have benefited his position. In the absence of such an explanation, we conclude that any error made in sustaining the objection did not result in a miscarriage of justice that justifies reversal. (See Evid. Code, § 354.)
3. Ohanesians relationship with his sister
Dedekian contends that he "was prohibited from fully questioning Ohanesian about his relationship with his sister Rose [Bales and] the lawsuit he filed against her in 1999 ...."
This contention implies that Dedekian attempted to ask questions of Ohanesian about his relationship with Rose Bales on matters other than the 1999 lawsuit. This implication is not supported by the record. We have reviewed both the attorney declaration and the reporters transcript and have located only one objection to questions to Ohanesian about her. That objection concerned the 1999 lawsuit. Because we are not able to locate any other evidentiary rulings on questions posed to Ohanesian about his relationship with Rose Bales, we conclude that our discussion in part III.E.2, ante, disposes of the purported error regarding this line of questioning.
Pages 150 and 151 of the reporters transcript reflect the questions Ohanesian was asked about Rose Bales.
4. Statements others made to Ohanesian about Dedekian
During the trial, when Ohanesians land was the topic being addressed, Ohanesian stated: "Thats what hes after, he wants to get my farm." When asked who told him that, Ohanesian replied, "They all tell me. [¶] ... [¶] People and the lawyers."
Dedekians attorney then asked, "Which lawyer told you that?" Opposing counsel objected and Ohanesian answered, "My lawyer tells me that hes after [my] property." The court then overruled the objection. Ohanesian continued: "And they even told me that if he gets a hold of [my] property, hes going to sell it." Dedekians attorney asked who told him that. Ohanesian replied, "The neighborhood, anybody that I talk to that knows about this case." Dedekians attorney asked: "John, I would like you to just give me the names of the people that told you that." At that point, the court interjected, "Counsel, I think youve explored this."
In each quoted answer, we have replaced the word "your" with the word "my."
Paragraph 35 of the attorneys declaration contends (1) that the court erroneously precluded an inquiry into, among other things, the who, when, where, and exactly what was told to Ohanesian and (2) that such an inquiry was relevant to Ohanesians ability to resist fraud.
We conclude that the court did not abuse its discretion in ending that line of questioning where it did. The court reasonably could have concluded from the series of questions and the general, somewhat vague replies of Ohanesian that he was not able to identify specific individuals, other than his lawyer, who had discussed the topic with him and that further questions would not provide any new information.
This conclusion can also be stated in terms of prejudice. There has been no showing that a further inquiry was reasonably likely to produce information that would have resulted in a more favorable outcome for Dedekian. (People v. Watson (1956) 46 Cal.2d 818, 836 [miscarriage of justice occurs when it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error]; see Evid. Code, § 354.)
5. Testimony of Rose Bales
Dedekian asserts that "the Trial Court prevented [his attorney] from fully questioning Rose [Bales], repeatedly sustaining opposing counsels objections on the grounds of relevance, and even where no grounds had been cited. (2 CT 450.)"
Dedekians attorney asked Rose Bales if she wrote a letter to Judge Kazanjian. Opposing counsel objected. Dedekians attorney argued the question was relevant under Probate Code section 1801. The court asked how the question related to fraud and undue influence. Dedekians attorney stated: "That her—the reason that she wrote the letter was she was telling the court that she was trying to get her brother to come live with her in San Diego. I just wanted that on the record. So I think—" The court requested opposing counsels position. Opposing counsel stated the question did not relate to the issue of whether or not a conservator should be appointed. The court sustained the objection and Dedekians attorney stated he had no further questions for the witness.
First, Dedekians assertion that the court repeatedly sustained objections to questions directed to Rose Bales is inaccurate. The court sustained only one objection.
Again, the inaccuracies in the assertion made in appellants opening brief illustrates why citation of the specific page of the record where the error appears is required. Had counsel provided supporting citations to the official reporters transcript, it is likely counsel would have discovered the inaccuracies in the assertion. (See Bus. & Prof. Code, § 6068, subd. (d) [duty of attorney not to mislead court by false statement of fact].)
Second, with respect to the one evidentiary ruling that the court did make, Dedekian has not established that the court abused its discretion. If, as stated by Dedekians attorney, the purpose of the question was to show that Rose Bales had asked Ohanesian to come to San Diego and told him that she would take care of him, then the question is cumulative because Ohanesian had testified that she had. The court did not abuse its discretion by disallowing a cumulative question. (See In re Ryan N., supra, 92 Cal.App.4th at p. 1387.)
6. Dr. Sherriffs testimony regarding Ohanesians memory
Dedekians attorney asked Dr. Sherriffs if he would expect that Ohanesian would be able to remember (1) filing a lawsuit against his sister for infliction of emotional distress and (2) testifying in a deposition in 2000 in a lawsuit in Fresno Superior Court. Opposing counsel objected to both questions and the court sustained the objections.
We conclude that the trial court did not commit prejudicial error in sustaining these objections. Dr. Sherriffs testified regarding Ohanesians long- and short-term memory, that his long-term memory was better than his short-term memory, and that it was more likely he would remember things that have emotional content. Also, Dedekians attorney asked Ohanesian if he knew whether Rose Baless husband was buried next to Ohanesians mother. Ohanesian answered that he did not know. Because the location of that burial was the basis for the 1999 lawsuit, Ohanesians own testimony established that he did not remember the cause for the lawsuit. (See part III.E.2, ante.)
Dedekian has not explained how Dr. Sherriffs answers to the two questions would have improved his chances of obtaining a more favorable outcome. Accordingly, Dedekian has not established that the exclusion of these answers resulted in prejudice requiring reversal. (See Evid. Code, § 354.)
7. Summary
Our review of the evidentiary rulings that Dedekian appears to be challenging on appeal has led us to the following conclusion. The rulings we have identified as erroneous or have assumed are erroneous did not result in a miscarriage of justice because it is not reasonably probable that a result more favorable to Dedekian would have been reached in the absence of error. Accordingly, we reject Dedekians contention that evidentiary errors justify reversal.
IV. Substantial Evidence Supported the Denial of the Conservatorship Petition
A. Contentions of the Parties
Dedekian argues that the courts finding that Ohanesian did not require a conservatorship is not supported by the substantial evidence that was introduced at trial.
Respondents argue that the court properly found Dedekian did not meet his burden of proof that a conservatorship was needed. Respondents also argue that the courts denial of the petition for a probate conservator should be reviewed using an abuse of discretion standard.
We will not resolve the dispute over the proper standard of review. Instead, for purposes of this opinion, we will assume that the substantial evidence standard applies. (See Guardianship of Waite (1939) 14 Cal.2d 727, 730 [substantial evidence did not support finding that 78-year-old woman was incompetent; grant of letters of guardianship of her person and estate reversed].)
B. Probate Courts Findings
The court denied the petition for appointment of a probate conservator based on the testimony of the two doctors and Ohanesian. In particular, the court made the following findings.
"The court was particularly impressed with Mr. Ohanesian and his testimony.
"Mr. Ohanesian was alert, attentive and oriented to time, person and situation. He has the ability to attend and concentrate. He also is able to understand and communicates with others and was able to recognize familiar objects and able to name his relatives and the relationships.
"Mr. Ohanesian definitely has a hearing problem that by itself is not sufficient to warrant he be placed in a conservatorship situation.
"The deficits he is experiencing can be overcome with the help of family members or other persons he trusts. He was able to express himself as to persons he didnt trust and the reasons why. Mr. Ohanesian does not have a deficit in mental functions that would significantly impair his ability to understand and appreciate the consequences of his actions with regard to the type of act or decision in question."
Based on these and other findings, the court denied the petition for appointment of a probate conservator. In reaching its decision, the court correctly required clear and convincing evidence that Ohanesian was unable to care for himself or manage his financial affairs. (Prob. Code, § 1801, subd. (e).)
C. Evidence Presented
The parties presented conflicting evidence regarding Ohanesians ability to take care of himself and to manage his financial resources.
Like the probate court, we recognize that situations change over time and the most significant inquiry was Ohanesians condition around the time of the trial. In other words, the fact that Ohanesian was unable to care for himself in August and September of 2006 does not mean that he lacked the ability to care for himself in January 2007. Also, the testimony of Dr. Tagore indicated that poor mental function could be improved as the result of better nutrition and addressing electrolyte imbalances.
Dedekian asserts that the court committed factual error by stating that Dr. Tagore "testified that severe dementia can be reduced to mild dementia. Tagore also testified that severe dementia can be reduced somewhat to mild dementia." We note that Dr. Tagore testified, "Dementia is irreversible." The courts misstatement of the testimony is slight and not material to the outcome of this appeal. The more important point is that Dr. Tagore testified mental function could be improved, identified some circumstances in which an improvement could occur, and those circumstances exist in this case.
There is little doubt that Ohanesian experienced significant problems in August 2006 when Dedekian found him unconscious on his living room floor. His subsequent medical treatment included the insertion of a feeding tube in his abdomen, and his confusion caused him to pull out the feeding tube a number of times.
There also is little doubt that Ohanesian improved significantly while in the care of Sanger Convalescent Hospital. For instance, Dr. Sherriffs testified that he would not be able to shop independently, but physically was able to feed himself. Ohanesians testimony was consistent with Dr. Sherriffs. Thus, one aspect of Ohanesians physical improvement is demonstrated by the fact he fed himself and no longer needed a feeding tube.
When asked if he needed help with grocery shopping and if he needed help with preparing meals, Ohanesian answered "sometimes" to both questions. When asked if he could eat by himself, Ohanesian answered, "I think I can."
Ohanesians mental improvement was demonstrated by, among other things, his participation in the trial. The courts first-hand observations of Ohanesian during his testimony formed a significant basis for its finding. These observations clearly established that Ohanesians score of 4 on the MMSE given to him on January 24, 2007, did not accurately reflect his mental capability. The trial court impliedly found that his low score was the result of his unwillingness to cooperate in the examination. (Cf. Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401-402 [court concluded that the wide difference in test results were attributable to how comfortable conservatee was with each doctor].) This implied finding is supported by Dr. Tagores own testimony. Furthermore, Ohanesians testimony confirms Dr. Sherriffs diagnosis of mild dementia.
With respect to Ohanesians ability to resist fraud and undue influence, the court reasonably could have inferred from the totality of the evidence, including Ohanesians testimony, that he has an independent nature and dislikes any infringements on his prerogative to make his own decisions. Thus, the court reasonably could have found that there was insufficient proof that Ohanesian was "substantially unable to ... resist fraud or undue influence." (Prob. Code, § 1801, subd. (b).)
Where findings of fact are challenged on a civil appeal, we are bound by the elementary principle of law that "the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor ...." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
In this case, we recognize that the record contains conflicting evidence and that conflicting inferences could be drawn from the evidence. The foregoing principles, however, compel us to conclude that the testimony of Ohanesian and Dr. Sherriffs constitutes substantial evidence in support of the courts findings under Probate Code section 1801.
V. Motion for New Trial
Applicable Principles of Law
Generally, a trial court has wide discretion when ruling on a motion for new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872 (Decker).) The grounds on which a motion for new trial may be granted are statutory. (Code Civ. Proc., § 657.) The grounds include (1) irregularities in the proceeding or an abuse of discretion that prevented any party from having a fair trial, (2) accident or surprise that could not have been guarded against, and (3) an error in law excepted to by the moving party. (Ibid.)
The standard for reviewing an order denying a motion for new trial has been addressed by the California Supreme Court. (Decker, supra, 18 Cal.3d at pp. 870-872; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 413, p. 464 [review of order denying motion for new trial].) In Decker, the court first determined there was a clear showing of attorney misconduct in arguing the matter to the jury and that the misconduct qualified as an "[i]rregularity in the proceedings" under Code of Civil Procedure section 657. (Decker, supra, at pp. 870-871.) The California Supreme Court then addressed the standard it would apply to the question whether the error was prejudicial. The court concluded that it was required to review the entire record, including the evidence, and independently determine whether prejudice resulted from the error. (Id. at p. 872.) The court independently resolved the question of prejudice by applying the general test for a miscarriage of justice—namely, whether it was reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error. (Ibid.; see People v. Watson, supra, 46 Cal.2d at p. 836.)
In this appeal, we first consider whether the court committed any errors. The court properly denied the motion to appoint a board-certified forensic psychiatrist or neurologist to conduct an independent examination of Ohanesian. (See part I, ante.) In addition, it properly denied the motion to continue trial. (See part II, ante.) Therefore, the only errors that might have justified granting the motion for a new trial involve the courts evidentiary rulings.
To the extent that any evidentiary rulings were erroneous, the errors were not prejudicial. (See part III.E, ante.) It follows that there has not been a sufficient showing of prejudice to justify this court concluding that the motion for new trial should have been granted. Accordingly, the probate court did not err when it denied the motion for new trial.
DISPOSITION
The order denying the petition for appointment of a probate conservator is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR:
HARRIS, Acting P.J.
HILL, J.