Filed 2/22/21 Conservatorship of Farrant CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

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. B306501

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

(Ventura County)

ANGELIQUE FRIEND, as 

Conservator,

 Petitioner and Respondent,

v.

DUANE FARRANT,

 Objector and Appellant.

This is the second appeal in this matter. It concerns a 

residence that Duane Farrant claims is owned solely by him. In 

the first appeal Farrant, the son of conservatee Norma Farrant,

appealed an order granting conservator Angelique Friend’s

petition to sell the residence. Conservator claimed that the

residence had been owned by appellant and conservatee as joint 
2

tenants, so each had a one-half interest in the residence. 

Conservator needed to sell the residence to raise funds to pay for 

services provided by an assisted living facility where conservatee 

was living. In a nonpublished opinion, we dismissed the appeal 

as moot because the residence had been sold and we could not 

undo the sale. (Conservatorship of the Person and Estate of 

Norma Farrant (Aug. 22, 2019) B289203.)

In the present appeal Duane Farrant appeals an order (1) 

confirming that a 2009 recorded deed quitclaiming the residence 

to him is void, (2) decreeing that the residence was owned by 

appellant and conservatee as joint tenants until the joint tenancy 

was severed in 2017, and (3) dividing the proceeds from the sale 

of the residence equally between appellant and conservator.1

Appellant contends that the probate court erroneously (1) 

based its decision on conservator’s verified petition, (2) denied his 

request for an evidentiary hearing, and (3) improperly 

communicated ex parte with conservator’s counsel. We affirm.

Factual and Procedural Background

After the remittitur was issued in the first appeal, 

conservator filed a verified petition requesting that the probate 

court divide the sale proceeds equally between her and appellant. 

Conservator claimed that the 2009 deed, in which conservatee 

had quitclaimed her entire interest in the residence to appellant, 

was “void as a matter of law.” 

Exhibits to the petition show the property’s title history. 

Before conservatee signed the 2009 quitclaim deed, the residence 

1 A third appeal is pending before us in B307338. In this 

appeal the appellant is also Duane Farrant. On October 7, 2020, 

we denied appellant’s motion to consolidate the second and third 

appeals.
3

was owned by her as trustee of the Norma Farrant Family Trust. 

Three weeks after conservatee had quitclaimed the residence to 

appellant, she signed a grant deed conveying the residence to 

herself and appellant as joint tenants. They both signed a deed 

of trust on the residence to secure a $120,000 loan. The deed of 

trust states that the borrower is “mother and son, as joint 

tenants.” Thus, even appellant acted on the theory that the 2009 

deed was void. He should be, and is, estopped from now trying to 

resurrect the 2009 deed by a new evidentiary hearing.

The petition’s exhibits include a purported “contract” 

between conservatee and appellant that was signed 

approximately three months before the 2009 quitclaim deed. 

Conservatee agreed to quitclaim the residence to appellant in 

consideration of his “helping in [conservatee’s] medical attention, 

food, clothing and normal care and needs. Not limited to, but to 

include all doctors[’] appointments and things of which she will 

need for her life for as long as she’s able to take care of herself.” 

The contract stated: “[T]his is not to be the sole property of 

[appellant], as after the passing of [conservatee] the proceeds of 

said property and assets of [conservatee] shall be dispersed 

evenly between [appellant and his brother,] Joshua Farrant . . . .” 

Appellant did not file a response to conservator’s petition. 

The day before the hearing on the petition, the probate court 

“published” its tentative ruling in which it requested that 

conservator provide supplemental briefing. Conservator filed her

brief on the date of the hearing. In the brief conservator claimed 

that appellant had unduly influenced conservatee to sign the 

2009 quitclaim deed. 

No evidence was presented at the hearing on the petition. 

Appellant’s counsel argued that the 2009 quitclaim deed was 
4

valid because when conservatee signed it, she “was very 

sophisticated, knowledgeable, and knew what she was doing.” 

“It’s not like as though she was not sophisticated or she didn’t 

have the sound mind when she did this.” In view of the valid

quitclaim deed, conservatee “had zero interest in the property” 

when she subsequently deeded it to herself and appellant as joint 

tenants. Thus, “her subsequent transfer . . . has no legal effect.” 

Appellant’s counsel claimed that his client should receive all of 

the proceeds from the sale of the residence because under the 

quitclaim deed he was the sole owner of the property at the time 

of the sale. Counsel requested that the court permit him to file a 

brief “on this issue.” The probate court did not rule on his 

request.

Conservator’s counsel argued that conservatee’s conduct 

“illustrate[s] . . . a pattern of someone who is susceptible to the 

undue influence of the person before her.” Conservatee’s signing 

of conflicting deeds within a period of three weeks “shows a 

person who doesn’t know what they’re doing.” Counsel 

continued, “[N]ot only did everyone pretty much not rely on this 

rogue deed [the 2009 quitclaim deed], but . . . everyone relied on 

the subsequent deed [conveying title to conservatee and appellant 

as joint tenants] . . . .” 

Appellant’s counsel responded: “The fact that there were 

changes when [conservatee] changed her mind, as [conservator’s] 

counsel argued, that is not evidence before this Court. . . . [¶] . . . 

[T]he Court should not be swayed by the emotional appeals of 

counsel . . . . There’s no evidence to back it.” 

Conservator’s counsel stated, “If I’m listening to 

[appellant’s] counsel and I’m hearing him correct, he’s asking for 
5

an evidentiary hearing.” Appellant’s counsel replied, “Exactly, 

your Honor. Thank you.” 

The court responded, “We’re not going to revisit 

anything. . . . We don’t have any evidence that anyone has acted 

other than by ignoring this rogue [quitclaim] deed . . . since 2011 

to the present. . . . [¶] I’m not going to give you time for an 

evidentiary hearing, because this has had opportunities to be 

addressed. It has not been addressed.[

2] And, in fact, both 

Norma Farrant, the conservatee, and [appellant], whose interests 

are affected here, have acted as if this was a rogue deed for over a 

decade.” The court said its “ruling is based on not only the filings 

in this proceeding, but the supplemental brief filed today; the 

entirety of the proceedings as I understand them contained in the 

court file, which is voluminous; and the argument of counsel 

today.” 

Alleged Violation of Statute Prohibiting Use of Affidavits and 

Verified Petitions in Contested Probate Proceedings

“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

(Bennett).) “[T]he Probate Code limits the use of affidavits to 

2 Conservatee’s counsel, who was present at the hearing, 

expressed the frustration caused by the long and drawn-out

litigation: “The Court’s files have to be as large as the boxes in 

our office. . . . These are pleadings that have been going [on] for 

years. . . . [¶] This is not the first time this is before the Court. 

This is not the first time this has been before the federal court, 

civil court, and the Court of Appeals . . . . [¶] This has been 

trailing for years and years. This has been addressed in at least 

10 to 20 different hearings just on this topic alone . . . . [W]e do 

intend to end this matter so that our client’s funds are not 

consistently drained . . . .” 
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‘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.) The relevant statute is Probate 

Code section 1022, which provides, “An affidavit or verified 

petition shall be received as evidence when offered in an 

uncontested proceeding under this code.” (Italics added.)

The probate proceeding here was contested. Appellant 

contends that, in ruling that the 2009 quitclaim deed was void, 

the probate court acted “in direct violation of . . . Probate Code 

section 1022” by “basing its decision on affidavits and declaration 

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

We disagree. Appellant’s counsel objected, on the ground of lack 

of supporting evidence, to the oral argument of conservator’s 

counsel that conservatee’s conduct “illustrate[s] . . . a pattern of 

someone who is susceptible to . . . undue influence” and “who 

doesn’t know what they’re doing.” Appellant’s counsel did not 

object to the court’s consideration of conservator’s verified 

petition and attached exhibits. Appellant’s counsel referred to 

the exhibits during his oral argument. Thus, the probate court 

properly considered the verified petition and attached exhibits. 

(See Estate pf 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”].)

Right to Evidentiary Hearing in 

Contested Probate Proceeding

Appellant claims that, pursuant to Estate of Lensch (2009) 

177 Cal.App.4th 667 (Lensch), and Bennett, supra, 163 
7

Cal.App.4th 1303, the probate “court committed reversible error 

denying Appellant’s request for evidentiary hearing.” In Lensch

petitioners filed a verified petition to determine whether a 

deceased beneficiary under a will had survived the testator. 

Petitioners would take under the will only if the beneficiary had 

not survived the testator. The petition was contested. At a 

hearing the probate court issued a tentative ruling that the 

beneficiary had survived the testator. It relied upon the 

testator’s and beneficiary’s death certificates. “Petitioners 

immediately requested an evidentiary hearing.” (Lensch, supra, 

at p. 672.) Petitioners’ “[c]ounsel pointed to ‘sworn testimony of 

[his] client who spoke to the coroner who declared that the time 

of death of [the beneficiary] could not be determined.’” (Ibid.) 

The probate court denied the request for an evidentiary hearing. 

It issued a final ruling that “‘[the beneficiary] survived [the 

testator], and that no further evidentiary hearing is required.’” 

(Id. at p. 673.) 

The appellate court reversed. It concluded that, because 

the petition was contested, “the probate court should have 

granted the request for an evidentiary hearing.” (Lensch, supra,

177 Cal.App.4th at p. 677.) The appellate court explained, “The 

Probate Code anticipates that a party may submit a matter on a 

verified petition alone. However, once a petition is contested, as 

this one was, the court erred in refusing to permit [petitioners] to 

proceed to an evidentiary hearing on the question of whether [the 

beneficiary] survived [the testator].” (Id. at p. 678.) The 

appellate court reversed the lower court’s order and remanded 

the matter for an evidentiary hearing. (Id. at p. 682.)

Bennett, supra, 163 Cal.App.4th 1303, is consistent with 

Lensch. In Bennett the petitioners filed a motion to set aside and 
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rescind a settlement agreement and assignment of their interests 

in the decedent’s estate. Petitioners claimed that the opposing 

party (Smith) “[had] obtained the settlement and assignment 

without giving adequate consideration and through fraud or 

duress, and that they executed these documents under a mistake 

of fact.” (Id. at p. 1307.) Smith argued that the probate court 

must conduct an evidentiary hearing because petitioners’ motion 

involved disputed material factual issues. Smith supported his 

argument with “four declarations and numerous exhibits, which 

made [several] factual assertions.” (Ibid.) The court granted 

petitioners’ motion without conducting an evidentiary hearing. 

The appellate court concluded, “[T]he probate court committed 

reversible error in denying Smith’s request for an evidentiary 

hearing.” (Id. at p. 1310.)

Standard of Review

The parties agree that the standard of review is abuse of 

discretion. (See Lensch, supra, 177 Cal.App.4th at p. 676 [“In 

Estate of Bennett[, supra,] 163 Cal.App.4th 1303, . . . the court 

held it was an abuse of discretion to deny a request for an 

evidentiary hearing of a contested motion”].) 

“‘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.)

The Probate Court Did Not Abuse Its Discretion

Appellant has failed to carry his burden of showing that the 

probate court abused its discretion in denying his request for an 

evidentiary hearing. Unlike the appellants in Lensch and 

Bennett, appellant here requested an evidentiary hearing without 
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specifying the factual issues he intended to litigate at the hearing

and without explaining why a hearing was necessary. 

Appellant’s counsel merely confirmed the understanding of 

conservator’s counsel that appellant was “asking for an 

evidentiary hearing.” In his reply brief appellant contends that 

the probate court erred in failing “to grant the requested 

evidentiary hearing on the issue of the mental competency of the 

Conservatee Farrant.” But in the probate court appellant did not 

say that the purpose of the evidentiary hearing would be to 

assess conservatee’s competency. 

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. In his opening brief appellant asserts, “Had the 

court granted [his] request for evidentiary hearing, [he] was 

going to call [conservatee’s] personal physician and personal 

attorney to testify that [she] had the mental capacity on [the date 

she signed the 2009 quitclaim deed] to have knowingly, without 

undue influence executed the said quitclaim deed.” Appellant did 

not inform the probate court that he intended to call these 

witnesses.

Appellant complains, “The court never request[ed] an offer 

of proof from the Appellant as a condition for granting or denying 

the request for evidentiary hearing.” But it was not incumbent 

upon the probate court to request an offer of proof; it was 

incumbent upon appellant to make, or at least try to make, an 

offer of proof. (See 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”].)
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Even if the Probate Court Had Abused Its Discretion,

Appellant Has Not Shown Prejudicial Error

“[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 is particularly difficult 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”].)

In his briefs, appellant does not even discuss the issue of 

prejudice. Accordingly, appellant has failed to carry his burden 

of showing that the alleged abuse of discretion prejudiced him. 

Probate Court’s Allegedly Ex Parte 

Communication with Conservator’s Counsel

In its tentative ruling published the day before the hearing, 

the probate court requested that conservator “provide a brief 

distinguishing this matter” from two appellate court published 

opinions. Appellant claims that this request was an improper ex 

parte communication between the court and conservator. The 

claim is without merit. Rule 8.00, subdivision A. of the Ventura 

County Superior Court Rules provides: “Tentative rulings will be 

available by 4:00 p.m. on the court day preceding the scheduled 

date of the hearing. Tentative rulings may be obtained on the 

court's Website at www.ventura.courts.ca.gov. Parties are 

encouraged to use the court’s website to obtain tentative rulings. 
11

Parties without internet access may call the judicial secretary for 

the courtroom of the hearing.”

Disposition

The order appealed from is affirmed. Conservator shall 

recover her costs on appeal.

NOT TO BE PUBLISHED.

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.