An unconventional application of Probate Code §850? The Court’s dissenting opinion

The case of Parker v. Schwarcz (84 Cal.App.5th 418, 2022) involved Parker, a former conservatee, who filed a petition under Probate Code section §850 after the termination of the temporary conservatorship. Parker requested that Schwarcz, the former conservator, provide communications and documents related to Schwarcz’s management of the temporary conservatorship estate.

Following the termination of the temporary conservatorship, Parker’s counsel sent an email demanding Schwarcz’s counsel to turn over all communications concerning Parker’s estate. However, Schwarcz’s counsel refused to comply with the request.

In February 2022, Parker filed a “Petition for Return of Property; for Declaratory Relief,” seeking an order under section §850 to compel Schwarcz to transfer all communications and documents related to the temporary conservatorship. In the alternative, Parker requested that certain documents be transferred to GSS, the trustee of Parker’s irrevocable trust. The petition also included a cause of action for declaratory relief, seeking clarification on whether Parker or GSS was entitled to receive the requested documents and communications.

Schwarcz opposed the petition and filed objections. After oral argument, the court denied Parker’s petition, stating that section §850 did not authorize the petition under the given circumstances since there was no conservatee and no personal property potentially belonging to Parker. The court considered the petition to be more of a discovery request more applicable to future hearings or filings. The Court states “At best, this appears to be a discovery request which may (or may not) be applicable to future hearings/filings.” The court, however, clarified that Parker could seek the same information or documents through discovery, and any objections to such discovery would be evaluated on their merits. The denial order, filed on May 3, 2022, states, in the relevant part: “The Petition is denied. Probate Code 850 does not authorize a Petition under these circumstances. (i.e., there is no conservatee and there is no personal property potentially belonging to [Parker].)

The appellate court affirmed the trial court’s decision. Although assuming Parker had standing as a “claimant” under Section §850, the court recognized that the legislative history of the statute indicated its purpose was to enable conservators to recover “assets” that should be part of the estate by transferring real or personal property. Previous cases involving Section §850 specifically dealt with real and personal property. Documents and communications did not possess the same attributes as property since they couldn’t be owned, lacked inherent value for the estate or debt repayment, and were not previously owned by Parker. Consequently, documents and communications did not qualify as recoverable property under Section §850.