Filed 8/2/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conservatorship of the Person 

and Estate of NORMA 

FARRANT.

2d Civil No. B307338

(Super. Ct. No. 56-2016-00483787-PRCP-OXN)

(Ventura County)

ANGELIQUE FRIEND, as 

Conservator, etc.,

 Petitioner and Respondent,

v.

DUANE FARRANT,

 Objector and Appellant.

This case serves as a textbook example of how a fiduciary 

should not proceed. Appellant continues to demonstrate that he 

has no concept of his duty to his elderly and incapacitated mother 

and her conservatorship estate. This is Duane Farrant’s third 

appeal concerning the conservatorship of the person and estate of 

his mother, Norma Farrant (Norma or conservatee). (See 

Conservatorship of Farrant, (Aug. 22, 2019, B289203) [nonpub. 
2

opn.] and (Feb. 22, 2021, B306501) [nonpub. opn.].)1 He appeals 

from orders requiring him to pay $63,448.90 for misappropriation 

of Norma’s assets, surcharging in the same amount appellant’s

share of interpled funds, and imposing sanctions of $121,000 for 

failing to timely file an accounting of his actions relating to 

Norma’s estate. Appellant contends that the probate court 

erroneously (1) ordered him to render an accounting because he 

did not owe a fiduciary duty to the estate, (2) based its decision 

on affidavits and declarations, and (3) denied his request for an 

evidentiary hearing. We affirm.

Factual and Procedural Background

Norma was born in 1926. In 2008 she executed a durable 

power of attorney granting appellant, as her attorney-in-fact, 

broad powers to manage her property. The power of attorney 

would become effective upon a determination that Norma was 

“‘incapacitated.’” 

In September 2015, when Norma was living in Missouri, a

Missouri court ordered appellant to account for all transactions 

conducted by him on behalf of Norma during the one-year period 

beginning on September 21, 2014. In 2016 Norma moved back to 

California. 

In January 2017 Angelique Friend, respondent, was 

appointed conservator of Norma’s person and estate. In 

November 2017 Diana Farrant (Diana), Norma’s daughter, filed a 

1 In the first appeal appellant appealed from an order 

directing the sale of a residence in Newbury Park (the Newbury 

Park property). We dismissed the appeal as moot because the 

property had already been sold. In the second appeal we affirmed 

an order voiding a deed in which appellant’s mother had 

purportedly quitclaimed the Newbury Park property to him 

before it was sold.
3

petition in the Ventura County Superior Court to compel 

appellant “to account for his actions on behalf of Norma Farrant 

for the period September 21, 2014, to date . . . .” As an exhibit to 

her complaint, Diana attached proof that a physician had 

examined Norma on June 12, 2015. He opined that Norma is 

“incapacitated” because “she is unable (completely & totally) to 

receive & evaluate information or to communicate decisions such 

that she lacks capacity to meet essential requirements for food, 

clothing, shelter and safety.” She was living in a skilled nursing 

facility. 

In February of 2018, the probate court conducted a hearing 

on Diana’s petition. Diana’s counsel said his client was “just 

piggybacking on the Missouri order” that appellant account for 

the one-year period beginning on September 21, 2014. He 

asserted that appellant had “never complied with the Missouri 

order.” 

At the hearing appellant appeared in propria persona. He 

told the court that on September 21, 2014, he had control over 

Norma’s pension checks and her share of the rental income from 

the Newbury Park property. (See fn. 1 at p. 2, ante.) The probate 

court ordered appellant “to do a formal account -- for the period 

September 21, 2014, to January 31, 2018 -- . . . for any pension 

checks you received on behalf of [Norma] and any rental monies 

you received on [her] behalf . . . .” The accounting was due on or 

before March 30, 2018. 

In a minute order dated July 10, 2018, the court noted that 

appellant had failed to file the accounting. The court ordered 

appellant “to appear in person or by video court call on October 

16, 2018, . . . and show cause for failure to file his account as 

ordered.” 
4

At the hearing on October 16, 2018, appellant was not 

present in person or by video court call. His attorney, Mr. 

Dickens, appeared in court on his behalf. The probate court 

issued orders to show cause why sanctions should not be imposed 

against appellant for failing to appear personally or by video 

court call and for failing to file an accounting. It ordered 

appellant to file the accounting on or before December 14, 2018. 

The court warned appellant’s counsel: “Now, make no mistake, 

Mr. Dickens, the hammer is coming down very hard if I don’t get 

a good accounting. There are no more excuses. There is no more 

delay. . . . This is the last . . . continuance that he’s going to get 

to get this accounting filed . . . .” 

On January 29, 2019, the probate court conducted a 

hearing on the orders to show cause. Appellant and his counsel 

personally appeared in court. Counsel said the accounting had 

not been prepared. Counsel explained: “[M]y client . . . made 

diligent efforts . . . trying to get the bank statements and he was 

unsuccessful, but we will subpoena those records and I will get 

the accounting in if you give us a reasonable amount of time.” “I 

believe there was a flood, a lot of [appellant’s] records were 

damaged, and so that’s why we’re having to subpoena them [from 

the banks].” 

Counsel for respondent (conservator Friend) protested: 

“[T]his is the fourth or fifth time we have been here since the 

initial order. Each time it’s the same argument. . . . We have 

racked up over $100,000 in fees . . . , all needlessly.” The court 

responded: “The Court . . . has heard about every excuse in the 

book as to why [the accounting] hasn’t been provided. . . . I am 

left really with no confidence that this will actually occur, despite 

Counsel’s representations to the contrary. [¶] The Court does 
5

find it in the best interest of this estate to impose sanctions 

[against appellant] of $1,000 per day until the accounting is 

filed . . . .” 

On May 31, 2019, appellant filed an accounting.2 It showed 

that he had received two payments of rental income for October 

and November 2014. Each payment was $2,575. For the period 

from September 16, 2014 through November 10, 2017, appellant 

listed disbursements totaling $44,322.05 for expenses he had 

incurred in maintaining the Newbury Park property. The 

accounting mentioned nothing about Norma’s pension income. 

The accounting included bank statements on which most of the 

information had been redacted. 

At a hearing on September 27, 2019, appellant appeared 

with new counsel (Mr. Uku). The probate court granted counsel’s 

request to file an amended accounting on or before December 20, 

2019. The due date was later extended to January 30, 2020. The 

court found that appellant had “failed to file an Amended 

Account.” 

In June 2020 respondent filed an objection to appellant’s 

accounting. After hearings conducted in July 2020, the probate 

court found that: (1) appellant “was in control of [Norma’s] 

pension income in the amount of $35,656.76, and failed to report 

said income in his account, and breached his fiduciary duty by 

comingling funds and self-dealing by using them for his own 

purposes”; (2) for the Newbury Park property, appellant received 

rental income of $101,150, one-half of which ($50,575) belonged 

to Norma since she owned a half-interest in the property; and (3) 

expenses for the Newbury Park property totaled $45,565.72, one2 This was four years after he had been ordered to file an 

accounting in Missouri in 2015.
6

half of which ($22,782.86) was allocable to Norma’s half-interest 

in the property. Therefore, the amount owed by appellant to 

Norma was $63,448.90 ($35,656.76 + $50,575 - $22,782.86 = 

$63,448.90). The court ordered appellant to pay this amount to 

“the Conservatorship Estate of Norma Farrant.” The court also 

ordered that appellant’s “share of the [proceeds from the] sale of 

the [Newbury Park] property . . . is hereby surcharged 

. . . $63,448.90.” Pursuant to an interpleader action, the sale 

proceeds had been deposited with the court. Counsel for 

respondent claimed that appellant had “already . . . received 

$150,000 out of the interple[]d funds.” 

Finally, the court ordered appellant to pay sanctions 

totaling $121,000 for the 121-day period from January 29, 2019, 

to May 31, 2019, when appellant filed his accounting. The court 

directed: “This sanctioned amount shall be immediately paid by 

[appellant] to Angelique Friend, Conservator of the Estate of 

Norma Farrant, and shall be a judgement against [appellant], 

until paid in full.”3

3 On January 29, 2019, the probate court ordered sanctions 

at the rate of $1,000 per day until the accounting was filed. This 

was fair warning. Nevertheless, appellant contends: “[T]he order 

imposing the $1,000 daily sanctions for failure to file accounting 

should be set aside for violation of the appellant’s due process 

rights because the Notice of the Ruling of the said order” was not 

filed until a week later. This contention borders on being 

ridiculous. Appellant has not shown how the one-week filing 

delay prejudiced him. Appellant, not the courts, engaged in 

lengthy and unexplained delay. Appellant is fortunate that he 

was not the subject of contempt proceedings and/or referral to the 

district attorney’s office for financial elder abuse investigation.
7

Claim that Probate Court Erroneously Ordered

Accounting Because Appellant Was Not a Fiduciary

A probate court generally has discretion to grant or deny a 

petition for an accounting, and the court’s decision is reviewed for 

abuse of discretion. (See Christie v. Kimball (2012) 202 

Cal.App.4th 1407, 1413 [“Determining the need for an accounting 

is a matter within the trial court’s sound discretion”]; Esslinger v.

Cummins (2006) 144 Cal.App.4th 517, 520.) “‘Discretion is 

abused whenever, in its exercise, the court exceeds the bounds of 

reason, all of the circumstances before it being considered. The 

burden is on the party complaining to establish an abuse of 

discretion . . . .’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 

566 (Denham).)

When the probate court ordered appellant to account, the 

court said, “[I]t’s a standard, when there’s a fiduciary, to do a 

formal account.” Appellant claims that the probate court abused 

its discretion and acted “in excess of [its] jurisdiction” because he 

did not owe a fiduciary duty to conservatee’s estate. He is wrong. 

First, “a fiduciary relationship between the parties is not 

required to state a cause of action for accounting. All that is 

required is that some relationship exists that requires an 

accounting. [Citation.] The right to an accounting can arise from 

the possession by the defendant of money or property which, 

because of the defendant's relationship with the plaintiff, the 

defendant is obliged to surrender.” (Teselle v. McLoughlin (2009) 

173 Cal.App.4th 156, 179-180.) In open court appellant said that 

on September 21, 2014, he had control over Norma’s pension 

checks and her share of the rental income from the Newbury 

Park property. Appellant was obliged to surrender these 

payments to the conservatorship estate. Thus, there was a 
8

special relationship between appellant and Norma that 

warranted the order compelling appellant to account for the 

pension checks and rental income. 

Second, the court did not err because there was a fiduciary 

relationship between appellant and Norma. Probate Code section 

39 provides: “‘Fiduciary’ means . . . attorney-in-fact under a 

power of attorney . . . .” In 2008 Norma appointed appellant as 

her attorney-in-fact under a durable power of attorney, the 

appointment to become effective upon a determination that she 

was incapacitated. In January 2009 appellant accepted the 

appointment in writing. In June 2015 a physician opined that 

Norma was incapacitated. Respondent’s counsel told the court, 

“We do know that [appellant] signed . . . a deed on the [Newbury 

Park] property using that power of attorney, because that’s 

recorded, but we don’t know what else he did with it.” It was 

reasonable for the probate court to draw the inference that, in 

exercising control over Norma’s pension checks and half-share of 

the rental income, appellant was purporting to act as her 

attorney-in-fact under the durable power of attorney. The 

minute order for the hearing conducted on February 20, 2018, 

states, “The court grants the petition ordering [appellant] to file a 

statutorily compliant accounting for his activities as actual or 

ostensible attorney-in-fact for the [Newbury Park] real 

property . . . .” 

Appellant Forfeited Claim that the Probate Court’s 

Order Was Based on Affidavits and Declarations 

For the first time on appeal, appellant contends that the 

probate court “abused its discretion and committed reversible 

error in . . . basing its decision on affidavits and declaration 

against appellant’s objection.” (Bold and capitalization omitted.) 
9

“It has long been the rule that in probate matters ‘affidavits may 

not be used in evidence unless permitted by statute. . . .’” (Estate

of Bennett (2008) 163 Cal.App.4th 1303, 1308-1309.) “[T]he 

Probate Code limits the use of affidavits to ‘uncontested 

proceeding[s].’” (Id. at p. 1309.) “Consequently, ‘when challenged 

in a lower court, affidavits and verified petitions may not be 

considered as evidence at a contested probate hearing. . . .’” (Ibid; 

see also Prob. Code § 1022.)

The probate proceeding here was contested. But appellant 

did not object to the probate court’s consideration of affidavits 

and declarations. By failing to object, appellant forfeited the 

issue. The probate court properly considered the affidavits and 

declarations. (Estate of Fraysher (1956) 47 Cal.2d 131, 135 

[“evidence which is admitted in the trial court without objection, 

although incompetent, should be considered in support of that 

court’s action [citations], and objection may not be first raised at 

the appellate level”].)

The Probate Court Properly Denied

Appellant’s Request for an Evidentiary Hearing

Appellant argues that the probate court “abused its 

discretion and committed reversible error in denying [his] request 

for evidentiary hearing.” (Bold and capitalization omitted.) The 

standard of review is abuse of discretion. (See Estate of Lensch 

(2009) 177 Cal.App.4th 667, 676.) 

Appellant has failed to show an abuse of discretion. (See 

Denham, supra, 2 Cal.3d at p. 566.) Instead of specifying the 

factual issues he intended to litigate and the relevant evidence 
10

(testimony and exhibits) he would produce at the hearing, 

appellant’s counsel made vague representations.4 

In the prior appeal decided in February 2021, 

Conservatorship of Farrant (B306501), supra, appellant 

contended that the trial court had abused its discretion in 

denying his request for an evidentiary hearing concerning the 

disputed ownership of the Newbury Park property. We rejected 

appellant’s contention for the same reasons that we reject his 

contention in the present appeal. We stated: “[A]ppellant . . . 

requested an evidentiary hearing without specifying the factual 

issues he intended to litigate at the hearing and without 

4 Counsel said: “[A]lmost all of the issues raised by the 

OSC would dissipate through an evidentiary hearing of the 

accounting where my client would take this time and explain 

what happened.” “[A]ll we asking for is for a hearing on these 

issues raised by the [court’s] tentative [ruling] and . . . what is on 

calendar today. We believe that if there’s a full evidentiary 

hearing, the Court may change its mind, and the result would be 

different.” “I believe that my client wants an opportunity to be 

heard. That is his instruction. He wants to address the Court 

then. . . . He wants . . . testimony taken. . . . And he believes 

that you have a fairer shape if he comes to court and the Court 

examines him in person and to correct some of this notions that 

he believes the Court now has them.” “[H]e wants to be able to 

demonstrate to the Court that he cooperated with counsel. He 

did what he could in good faith. And he believes that his 

credibilities are at issue, and he believes that that can be righted 

with an evidentiary hearing. [¶] . . . And he asked me to clear 

with the Court to hear him out in person. . . . [¶] . . . [J]ust for 

fairness reasons, let’s give him his day in court.” “[H]e believes 

that if the Court give[s] him an opportunity to address the Court 

and make additional inquiry contemporaneously, . . . he would 

come out better, and the sanction at least could be reduced.”
11

explaining why a hearing was necessary. . . . [¶] Furthermore, 

appellant did not identify the witnesses who would testify at the 

evidentiary hearing, nor did he make an offer of proof as to the 

substance of the evidence he would present at the hearing.” (Id., 

slip opn. at pp. 8-9.) 

Appellant Has Not Shown Prejudice 

“[A]n abuse of discretion results in reversible error only if it 

is prejudicial.” (York v. City of Los Angeles (2019) 33 Cal.App.5th 

1178, 1190; see Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) 

The burden is on the appellant to show prejudice. (Pool v. City of

Oakland (1986) 42 Cal.3d 1051, 1069.) An assessment of 

prejudice cannot be made here because appellant did not make 

an offer of proof in the probate court. (See People v. Anderson

(2001) 25 Cal.4th 543, 580 [rule requiring offer of proof in the 

trial court (Evid. Code, § 354, subd. (a)) “is necessary because, 

among other things, the reviewing court must know the 

substance of the excluded evidence in order to assess prejudice”]; 

Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 

[“the failure to make an adequate offer of proof in the court below 

ordinarily precludes consideration on appeal of an allegedly 

erroneous exclusion of evidence”].) Appellant does not discuss the 

issue of prejudice. Accordingly, appellant has failed to carry his 

burden of showing that the alleged abuse of discretion prejudiced 

him.

New Claims in Appellant’s Reply Brief

Appellant makes two new claims in his reply brief. First, 

appellant claims that, because the Probate Court awarded 

sanctions pursuant to Code of Civil Procedure section 177.5, the 

amount of sanctions was limited to $1,500. Section 177.5 

provides, “A judicial officer shall have the power to impose 
12

reasonable money sanctions, not to exceed fifteen hundred dollars 

($1,500), notwithstanding any other provision of law, payable to 

the court, for any violation of a lawful court order by a person, 

done without good cause or substantial justification.” (Italics 

added.) 

The probate court did not impose section 177.5 sanctions 

payable to the court. It ordered that sanctions be payable to the 

conservatorship estate. (See Padron v. Watchtower Bible & Tract

Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1264 [court 

upheld award of sanctions at rate of $4,000 per day for refusal to 

comply with discovery order where sanctioned party “abused the 

litigation process and has shown little respect for the superior 

court's authority”].) 

The second new claim is that the probate court’s order 

imposing sanctions violated rule 2.30 of the California Rules of 

Court (rule 2.30). Appellant’s claim lacks merit. Rule 2.30 is 

inapplicable. It permits sanctions to be imposed for violations of 

“the rules in the California Rules of Court . . . .” (Rule 2.30(a); 

see also rule 2.30(b).) Appellant was not sanctioned for violating 

a rule of the California Rules of Court. He was sanctioned for 

failing to prepare and file an accounting in violation of the 

probate court’s express order. 

Disposition

The orders appealed from are affirmed. Respondent shall 

recover her costs on appeal.
13

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Roger L. Lund, Judge

Superior Court County of Ventura

______________________________

Law Offices of Levi Reuben Uku and Levi Reuben Uku, for 

Objector and Appellant.

Law Offices of David A. Esquibias, David Esquibias and 

Sara J. McLemen, for Petitioner and Respondent.