Filed 8/4/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

Conservatorship of the Person and Estate of 

FRANK PARKER.

 B245202

 (Los Angeles County

 Super. Ct. No. BP094578)

MARK BOOTHBY,

Petitioner and Respondent,

v.

RICHARD NORENE et al., as 

Coconservators, etc.,

Objectors and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County.

Michael Levanas, Judge. Affirmed.

Weinstock Manion, Blake A. Rummel; Law Office of Cynthia R. Pollock, 

Cynthia R. Pollock for Objectors and Appellants.

Law Offices of L’tanya M. Butler, L’tanya M. Butler; Law Offices of Howard A. 

Kapp, Howard A. Kapp for Petitioner and Respondent.

___________________________________________________
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A conservatee’s debts—incurred before creation of the conservatorship—must be 

paid from his estate. (Prob. Code, § 2430, subd. (a)(1).)1 Here, a creditor seeks to collect 

an exemplary damages award from a tortfeasor who was placed under a conservatorship 

after he was sued for his wrongdoing. We conclude that the debt was incurred when the 

conservatee committed the tort, not when the jury rendered its verdict awarding damages 

for the wrongful conduct. As a result, the conservator must pay the punitive damages 

award to the creditor from the conservatee’s estate.

FACTS2

Mark Boothby and Frank Parker met in 1990. They decided to start “flipping” 

homes: Parker would contribute funds to purchase and remodel homes and Boothby 

would contribute “sweat equity” by doing the necessary work. They agreed to split sale 

profits equally after reimbursing Parker for his outlays. 

In 2002, Boothby found undeveloped land in Lancaster (the Property), which the 

two men purchased for $495,000. During escrow, they received an offer for the Property 

that would yield them each a profit of $250,000. They declined the offer and formed a 

corporation called Fresh Start Developments (Fresh Start) to take title. They planned to 

build condominiums. Before escrow closed, Parker informed Boothby that he wanted 

title to be in his name alone. Boothby quitclaimed his right to ownership of the Property.

The men agreed that Parker would fund preparations for developing the Property 

and Boothby would facilitate the process. They reaffirmed their agreement to share 

profits equally after reimbursing Parker. Boothby relocated to Lancaster to oversee the 

project, meeting with architects and engineers and learning the requirements for 

 

1 Unlabeled section references in this opinion are to the Probate Code.

2 The facts are taken from this Court’s opinion in Boothby v. Parker (Mar. 5, 2010, 

B200679 (nonpub. opn.). We take judicial notice of the prior appeal as a related 

proceeding leading to the present appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); 

Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 401.)
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developing land. Parker paid Boothby’s expenses, including rent, telephone, a truck, and 

a $2,000 weekly advance. 

The partners considered selling the Property in 2003, when Parker was ill, and 

Boothby found a local developer who offered to purchase it for $3 million. Parker and 

Boothby decided not to sell the Property. Instead, they contemplated joining forces with 

the developer in a deal in which Fresh Start would receive 75 percent of the profit from 

the sale of the condominiums and the developer would receive 25 percent. 

To document this proposal, Boothby contacted Attorney Olga Karasik, who met 

with Boothby and Parker in January 2004. She understood that they were partners who 

agreed to share profits from the development project. She advised them about the risks of

individual ownership, and suggested holding title through a California limited liability 

company. Boothby signed a retainer agreement identifying himself, Parker and Fresh 

Start as Karasik’s clients. Karasik next met with Boothby, Parker and the developer from 

Lancaster to discuss the proposed development agreement.

In February 2004, Parker’s friends and family convinced Parker to sever his 

relationship with Boothby. They believed that Boothby was taking advantage of Parker. 

Parker angrily demanded the keys to the truck he had acquired for Boothby’s use, and 

would not answer Boothby’s questions or confirm their partnership. He ceased paying 

rent on Boothby’s apartment. They stopped communicating. 

Karasik redrafted the development agreement to exclude Fresh Start, listing only 

Parker and the Lancaster developer as the contracting parties. She created a joint venture 

in which Parker received 75 percent of the profits and the developer received 25 percent. 

In March 2004, Krasik terminated her representation of Boothby, claiming a conflict of 

interest between Parker and Boothby. Afterward, Boothby learned of the joint venture 

agreement between Parker and the developer. 

On February 8, 2005, Boothby sued Parker for breach of contract, breach of 

fiduciary duty, fraud, defamation, and emotional distress. Boothby asserted claims 

against Karasik and her law firm for malpractice and breach of fiduciary duty. Parker 
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cross-complained for elder abuse, fraud and misrepresentation, alleging that he suffered 

from diminished mental capacity due to dementia, alcoholism and diabetes.

By special verdict, a jury found that Parker breached his fiduciary duty to 

Boothby, and acted with malice, fraud, oppression, or despicable conduct. The jury 

found against Karasik and her law firm for malpractice and breach of fiduciary duty. In a 

judgment entered May 4, 2007, Boothby was awarded $725,000 in economic damages 

against Parker and the law firm defendants, jointly and severally, and $350,000 in 

punitive damages against Parker and the Parker Family Trust.

The defendants appealed. This Court affirmed the punitive damages award, but 

reduced economic damages from $725,000 to $325,000. Subsequently, the law firm 

defendants tendered compensatory damages of $325,000 to Boothby, leaving unpaid the 

punitive damages award of $350,000.

While Boothby’s lawsuit was pending, and before judgment was entered, a 

temporary conservatorship was established for Parker in October 2005; this became 

permanent in February 2006. Boothby petitioned the probate court to direct Parker’s 

conservator to pay the judgment. Parker resisted the petition.

The probate court ruled that (1) Parker’s debt to Boothby pre-dates the 

conservatorship “because the debt was incurred at the time the tort occurred” and (2) all 

debts and expenses incurred before the conservatorship “must be paid by the Conservator 

regardless of whether that payment would impair the ability to provide the necessaries of 

life to the Conservatee.” The court ordered the conservator to pay Boothby $350,000 in 

punitive damages and $137,958 in interest on the award.

DISCUSSION

Conservatorships are governed by the Probate Code. (§ 1800 et seq.) Boothby 

petitioned the probate court to order the conservator to pay a debt due from Parker, the 

conservatee. (§ 2404, subd. (a).) Appeal may be taken from the order directing the 

conservator to pay a debt or claim. (§ 1300, subd. (d).) The appeal presents a question of 

law regarding the interpretation and application of the Probate Code to undisputed facts. 
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Boothby sought payment of the judgment pursuant to section 2430, which states 

that a conservator “shall pay” from the principal and income of the estate “debts incurred 

by the [ ] conservatee before creation of the [ ] conservatorship.” (§ 2430, subd. (a)(1), 

italics added.) By contrast, payment of debts incurred by the conservatee during the 

conservatorship “are not required to be made to the extent the payments would impair the 

ability to provide the necessaries of life to the conservatee.” (§ 2430, subds. (a)(3), (b).)

Parker’s conservators acknowledge the mandatory statutory language applying to 

debts incurred before creation of the conservatorship, versus the “necessaries of life” 

discretion afforded to debts incurred during the conservatorship. They posit that the debt 

in this case was incurred “during the conservatorship”—and is therefore discretionary—

because the judgment Boothby obtained against Parker was entered after the 

conservatorship was established. In the conservators’ view, because Boothby became a 

judgment creditor after the jury rendered its verdict, “the ‘debt’ Boothby seeks to satisfy

clearly post-dates the Conservatorship.”

The law does not support the conservators’ view. Debts arising from wrongful 

conduct are incurred when the tort is committed, not when judgment is entered.

“It is well settled in this state that the relationship of debtor and creditor arises in 

tort cases the moment the cause of action accrues.” (Hansen v. Cramer (1952) 39 Cal.2d 

321, 323.) “[T]he term ‘debt,’ used in our statutes, ‘should be given its modern legal 

significance, as including any sort of obligation to pay money.’” (Chalmers v. Sheehy 

(1901) 132 Cal. 459, 465.) A debtor is someone who “is or may become liable to pay 

money to another, whether such liability is certain or contingent.” (Civ. Code, § 3429.) 

A person who causes injury becomes a debtor on the date of the injury-causing incident, 

even if the amount of the debt is indefinite until an award is made. (Schwartz v. Brandon 

(1929) 97 Cal.App. 30, 37-38.) The inverse is true as well: someone injured by 

another’s tort “becomes a creditor when the cause of action accrues,” even before legal 

action is taken. (Chalmers v. Sheehy, supra, 132 Cal. at p. 465. See Civ. Code, § 3430 [a 

creditor is one who “is, or may become, entitled to the payment of money”].) A money 
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judgment is “no more than a judicial determination of the validity of [an] existing claim.” 

(Adams v. Bell (1936) 5 Cal.2d 697, 701.)3

Nothing in the Probate Code suggests a legislative intent to disrupt the settled rule 

that a debt is incurred when a tort is committed. In the context of administering 

decedents’ estates, a “debt” means “a claim” (§ 11401) and a claim means a demand for 

payment arising in contract or tort, whether due or not due, accrued or not accrued, 

contingent, liquidated or unliquidated. (§ 9000, subd. (a)(1).) Thus, under the Probate 

Code, an unresolved tort claim is a “debt.” With regard to conservatees, the Supreme 

Court has acknowledged that “debts” include tort, quasi-contractual and contractual 

obligations. (Board of Regents v. Davis (1975) 14 Cal.3d 33, 42-44 [interpreting the 

predecessor statute to § 2430].)

Our conclusion that the Legislature intended for conservatees to be liable for 

tortious acts is fortified by Civil Code section 41, which states that persons of unsound 

mind are liable for exemplary damages if they are capable of knowing that the act was 

wrongful “at the time of the act.” This statute underscores that responsibility for punitive 

damages arises on the date the wrongful act was committed, not when a jury verdict or 

judgment is rendered. In this instance, Parker tried—and failed—to prove at trial that he 

suffered from diminished mental capacity due to dementia, alcoholism and diabetes. 

Thus, the jury believed that Parker knew his act was wrongful “at the time of the act,” 

making him liable for pre-conservatorship wrongdoing under Civil Code section 41.

The conservators maintain that Boothby cannot recover because the jury verdict 

“makes no mention of when either breach of contract or the tort [breach of fiduciary 

duty] occurred.” It is evident—indeed it is res judicata, in light of the prior appeal—that 

 

3 Although the cited cases involve fraudulent transfers, the Civil Code statutes are 

not part of the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.); rather, they 

describe “General Principles” regarding the relations between debtor and creditor (Civ. 

Code, §§ 3429-3434). The rule that the debt arises when the tort is committed has been 

applied in probate cases elsewhere. (See Dunn v. Lindsey (N.M. 1961) 361 P.2d 328, 

329; State v. Smith (Ariz.App. 1967) 431 P.2d 902, 905.)
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the tort occurred and Boothby’s claim accrued in 2004, when Parker and Attorney 

Karasik secretly excluded Boothby from the agreement to develop the Property, to 

prevent him from profiting from the sale of the condominiums that were to be built. 

Boothby sued in February 2005, before the conservatorship was created. 

The conservators argue that even if the debt for punitive damages was incurred 

before the conservatorship was created, section 2430 “should not be interpreted so 

harshly as to mandate payment when to do so would deprive the Conservatee of the 

‘necessities of life.’”

A review of statutory history indicates that the Legislature once agreed with the 

conservators’ line of reasoning. The Probate Code formerly applied the “necessaries of 

life” exception to debts incurred either before or after creation of the conservatorship. 

(Former § 1858; Stevenson v. Superior Court (1970) 9 Cal.App.3d 904, 906-907 [stating 

that former § 1858 excepts the necessaries of life from the payment of debts incurred 

before creation of the conservatorship].)4 When section 2430 was enacted, addressing 

the same subject, the Legislature dropped the “necessaries of life” exclusion for debts 

incurred before creation of a conservatorship (§ 2430, subd. (a)(1)), but kept the 

exclusion for debts incurred during the conservatorship (§ 2430, subds. (a)(2), (b)). 

We must presume that the Legislature purposefully removed an advantage 

previously conferred on conservatees, which worked to the disadvantage of creditors. 

The repeal of a prior statute together with enactment of a new law on the same subject, 

 

4 Former section 1858 read, “The conservator shall pay . . . any debts incurred by 

the conservatee before creation of the conservatorship; and he shall pay any debts 

incurred by the conservatee after the creation of the conservatorship, except that ability to 

continue to provide the conservatee with the necessaries of life, out of the estate, shall not 

be impaired. The conservator shall pay debts incurred by the conservatee during the 

conservatorship for the necessaries of life, and . . . shall pay any other debts incurred by 

the conservatee during the conservatorship only if they appear to be such as a reasonably 

prudent person might incur. The conservator may petition the court for instructions when 

there is doubt whether a debt should be paid.” Former section 1858 was repealed in 

1979. (Stats. 1979, ch. 726, § 2, p. 2334.)
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with deletions, strongly suggests that the Legislature intended to change the law. (People 

v. Mendoza (2000) 23 Cal.4th 896, 916; People v. Valentine (1946) 28 Cal.2d 121, 142.) 

A legislative intent to change the law is presumed where one statute is repealed and 

another statute with different wording is enacted on the same subject. (Garcia v. Sterling 

(1985) 176 Cal.App.3d 17, 21.) If the Legislature intended to exempt all indebtedness 

that impairs payment for the conservatee’s living expenses, it could have reenacted the 

wording in former section 1858. We cannot rewrite section 2430 to confer protection by 

judicial fiat for conservatees’ assets after the Legislature removed that protection.

Finally, the conservators rely on section 2404, but it does not apply here. Section 

2404 authorizes the probate court to order a conservator to furnish a conservatee with 

comfortable and suitable support in the event that the conservator fails, neglects, or 

refuses to do so. There is no claim or evidence that the conservators failed, neglected or 

refused to furnish suitable support to Parker, and we decline to speculate whether this 

may occur at some unknown time in the future. The only thing that is certain at this point 

is that Parker breached his fiduciary duty to Boothby in 2004, he incurred a debt to 

Boothby at that time, and the conservators must pay Parker’s pre-conservatorship debt to 

Boothby under section 2430.

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

BOREN, P.J.

We concur:

CHAVEZ, J. FERNS, J.*

_______________________________________________________________

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.