Opening Brief of Doris M. Rich



Doris M. Rich and Arden Rich,

Solano County No. P34215
James A. Moore,



This is an appeal from a series of orders of the Solano County Superior Court, including orders of Judge R. Michael Smith dated December 2, 1994 and December 21, 1994.

The December 2, 1994 order provided the following (See Record, p. 64):

Jim Moore is appointed the conservator of the person only.

The petition for the temporary conservatorship only is denied without prejudice.

The request for psychiatric evaluation of Doris Rich is granted with Doris Rich having veto power to decline participation in the evaluation. If Ms. Rich wishes to participate in a psychiatric evaluation, Mr. Bolt may select the evaluator.

Myrna Rich will be allowed to remain on the premises overnight. There will be no overnight stays other than by Myrna Rich and there will be no overnight stays by any friend or associate of Myrna Rich.

Bond is set in the amount of $200,000.

The Order of December 21, 1994 appointed Jim Moore as the "temporary conservator" of Doris Rich and contained the following additional provisions (See Record, p. 94):

1. Arden Van Upp shall cause Doris Rich to be available for pickup and transportation to her home in Vallejo by Neel Rich on Saturday, December 24, 1994 at 3:00 PM. The pick up site shall be at the home of Arden Van Upp, located at 2550 Webster Street, San Francisco, California. Arden Van Upp shall cause Doris Rich to be present at the front of the 2550 Webster Street property on the above mentioned date and time.

2. Mr. Kroll is ordered to make sure that Arden Van Upp is aware, advised and fully informed of this courts order.

3. The children of Doris Rich shall have reasonable contact with her. However, Doris Rich shall not be moved from her 733 York Street, Vallejo residence without prior order of the court. No overnight visits will be allowed except for Myrna Rich. Myrna Rich shall be allowed to remain in the home as the primary caretaker of her mother, Doris Rich. No friends of Myrna Rich shall be allowed to remain on the premises.

4. Except for Saturday, December 24, 1994, Arden Van Upp shall be allowed specific visitation with her mother every Saturday between 9:00 AM and 6:00 PM; and Arden Van Upp shall cause her mother, Doris Rich to be returned to her Vallejo home no later than 6:00 PM on Saturdays.

5. None of the children, nor anyone at their request, shall discuss the pending conservatorship proceedings with Mrs. Rich.

6. In the event that these orders are not complied with, then it is ordered that law enforcement authorities of San Francisco or Vallejo aid the temporary conservator, or Neel Rich to enforce the orders contained herein.



Appellant is well aware of Section 2750 of the Probate Code which states:

An appeal may be taken from the making of or the refusal to make a judgment or order doing any of the following:

(a) Granting or revoking letters of guardianship or conservatorship except letters of temporary guardianship or temporary conservatorship.

Although the orders in question do appoint Jim Moore as "temporary conservator", they go far beyond that and are injunctive in nature. An order granting an injunction is, of course, appealable. See Code of Civil Procedure, Sec. 904.1 (f).

It is clear that both of the two court orders are injunctive in nature and enjoin a wide range of people, many of whom were not before the court. Moreover, as will be seen, the Solano County Superior Court was without jurisdiction to enter such orders, for numerous reasons.

For example, the December 2, 1994 order contained the following provision: "Myrna Rich will be allowed to remain on the premises overnight. There will be no overnight stays other than by Myrna Rich and there will be no overnight stays by any friend or associate of Myrna Rich."

This provision was directed specifically at Arden Rich. The fact is that Doris Rich wanted her daughter, Arden Rich, to stay in her home. Thus, the order both enjoins Arden Rich from staying in her mother's home and enjoins Doris Rich from allowing Arden Rich to stay in her home. Such an order, which seriously restricts the rights, freedoms and liberties of the parties, is clearly appealable.

The second order went much further because, as a consequence of the December 2, 1994 order, Doris Rich had moved out of her home at 733 York Street in Vallejo and moved to San Francisco. The December 21, 1994 order required Doris Rich to surrender herself to the custody of Neel Rich on December 24, 1994. This was essentially an order of civil arrest. The same order also ordered the police and law enforcement authorities of San Francisco to enforce the order. It ordered that "Arden Van Upp shall cause her mother, Doris Rich to be returned to her Vallejo home" and so on. Every provision of this order was in the nature of an injunction. As a result, there can be no doubt that the order is appealable.

Moreover, as this court has noted:

We also note that the principal reason for limiting appeals in probate matters is to prevent delay in the distribution of estates (Conservatorship of Smith, (1970) 9 Cal. App.3d 324, 327, 88 Cal. Rptr. 119), a factor not relevant to the controversy here. We therefore treat Trustees' appeal as an application for a writ of certiorari to review the instant proceedings, and we grant the writ because it involves a question of public importance appropriate for resolution." Matter of Estate of Hearst, (1977) 67 Cal.App.3d 777, 781, 136 Cal.Rptr. 821, 822.

The appellants here have, in fact, filed two petitions for an extraordinary writ of mandate. This case is suitable and appropriate for the issuance of an extraordinary writ, because appellant Doris M. Rich has been held under house arrest ever since January, 1995 as a consequence of these orders. Moreover, pursuant to this order, Arden Rich was twice arrested and held in jail for a total of five days in January, 1995. It is also apparent that the reason that Judge Smith issued these orders without taking any evidence at all on these matters was his belief that his orders could not be appealed.

Doris M. Rich has been deprived of every fundamental constitutional freedom as a result of the orders appealed from. She has been denied the right to choose where she lives, what she eats, what sort of medical treatment she receives, what doctors she may consult, what mail she receives, whom she may receive in her home, whom she may talk to the telephone, and what subjects she may discuss. Surely, an order which deprives any person of such fundamental rights is appealable.



On December 8, 1994, John D. O'Hara, attorney for the petitioners, obtained an ex-party hearing for his client before Judge R. Michael Smith. (Record p. 80) Although Doris Rich and Arden Rich had appeared in this proceeding, neither they nor their attorneys were ever notified of this private meeting between Judge Smith, Neel Rich and John O'Hara. In fact, appellants were totally unaware that such a meeting had taken place nor were they aware that there had been at least three other ex-party meetings between Judge Smith and Neel Rich, until the record of this case was filed in the Court of Appeals. (Record 7, Record 10, Record 11). All that appellants really knew was that somehow John D. O'Hara had been able to schedule a hearing in Solano County Superior Court on less than one day's notice.

On December 20, 1995, when the case came before the assignment judge, who was Judge Nail, he assigned the case to Department 7, which is the courtroom of Judge Smith. Robert Kroll, counsel for appellant, immediately then moved pursuant to CCP 170.6 that Judge Smith be disqualified from this case. However, even though Judge Smith had been assigned to hear the case only moments before, Judge Nail ruled that the application pursuant to CCP 170.6 was "untimely". (Record 87).

The next day, Judge Smith heard the case. Immediately, when the case was called, counsel for Arden Rich moved pursuant to Rule 170.6 to disqualify Judge Smith (Transcript 7). Judge Smith denied this motion and proceeded to hear the case. (Record 91).

MR. KROLL: Okay. I'll advise your honor that I made a 170.6 motion yesterday which was denied. I'm going to ask your Honor, in all due respect, to recuse yourself on the grounds that you have made a remark in court disparaging the litigants in this case.

THE COURT: All litigants.

MR. KROLL: All litigants. But my client took it very personally and I believe feels that it would be difficult for her to get a fair and unbiased hearing in the matter because of that. And so we are making that motion.

You know, I understand your Honor's frustration with the circumstances here, but my client also heard you make a remark in addition to that one which indicated to her confusion of her with her sister Myrna, and her sister Myrna was the one who, on the record, admitted to injuring her mom.

You then proceeded to make an order that restricted my client's access to her mother and not restricting Myrna's access to her mother.

THE COURT: Well, I will give everyone an opportunity to keep me straight on the facts today by presentation of evidence. With respect to your client's perception that I am going to be unfair to her, that's a bad perception. I do have considerable concern about all of the parties in this action. I don't think the siblings are necessarily -- and that's a general comment -- doing what is in the best interest of their mother. I am troubled that cannot be worked out in the best interest of her mother.

But that, in no way, is going to affect my ability to fairly judge the evidence and apply the appropriate standard to the issue of whether or not a temporary conservator of the person should be appointed here, and that's the issue before me. So I will not disqualify myself.

It is obvious that appellant's motion was not untimely. Judge Harris had the case before him on December 13 (Record 85). The only reason that Judge Harris did not proceed with the trial of the case was that Mr. Bolt was not ready. (Record 85). Judge Nail heard the case on December 20 (Record 87). Until Judge Smith was assigned to hear the case on December 21, counsel for appellant had know way to know who would be the judge on this case.

CCP Section 170.6 (2) provides in part:

Any party to or any attorney appearing in any action or proceeding may establish this prejudice by an oral or written motion without notice. ..... Where the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date.

There has never been any judge assigned to this case for all purposes. Every sitting judge in Solano County has heard this case at one time or another. However, as will be seen, there can be no doubt that Judge Smith is personally biased against Doris Rich and Arden Rich and the motion to disqualify Judge Smith was properly and timely made.

If the motion [under Code Civ. Proc. 170.6] is timely and properly filed, the judge must recuse himself without further proof and the case must be assigned to another judge. The judge's disqualification is mandatory. Once properly and timely challenged, the judge loses jurisdiction to proceed and all his subsequent orders and judgments are void." Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 615-616, 253 Cal.Rptr. 748, Sunkyong Trading (H.K.) v. Superior Court (1992) 9 Cal.App.4th 282, 288, 11 Cal.Rptr.2d 504, 508.

It is clear from the record that counsel twice made a timely motion that Judge Smith recuse himself from this case. (Record 87, 91). Accordingly, the order made by Judge Smith on December 21, 1995 was without jurisdiction and is null and void.



It is apparent that Judge Smith of the Solano County Superior Court views this case to be analogous to a child custody case, where the courts can set visitation schedules, etc. For example, he stated at one point that he views this as a "reverse child custody case". However, Doris M. Rich is not a child. She is an intelligent and capable adult who has strong opinions about how she wants to conduct her personal affairs. These are opinions with which her son, Neel Rich, does not agree.

It is obvious that for the court to interfere with the rights of Doris Rich to conduct her own personal affairs, a high standard of proof is required.

If the individual's fundamental rights are violated, it is immaterial whether the statute or proceedings are civil or criminal. Katz v. Superior Court (1977) 73 Cal.App.3d 952, 969-70, 141 Cal.Rptr. 234, 244.

Similarly, the courts have observed:

"It is a fundamental principle, based upon the plainest dictates of justice, that before a person can be deprived of his liberty and his property on account of his mental incompetency, he must be brought clearly within the terms of the statute, and the evidence must show that his mind is so far gone and so weak and feeble that he does not realize and comprehend the value and prudent management of his property, and is not sufficiently normal to care for it in the usual acceptation of the term." Katz v. Superior Court (1977) 73 Cal.App.3d 952, 966, 141 Cal.Rptr. 234, 242, citing In re Coburn (1909) 11 Cal.App. 604, 606.

In the case presented here, Doris M. Rich is not mentally incapacitated at all. The simple facts are that Doris M. Rich has approximately $1.5 million and Neel Rich and James A. Moore want that money. It is as simple as that. No evidence has ever been presented that Doris Rich is mentally incapable of handling her own financial affairs, and Judge Smith acknowledged that. Here is what Judge Smith said (Transcript 96 and 97):

THE COURT: You know, one thing that strikes me about this case is not so much that nobody wants to be involved in Mrs. Rich's life. It's everybody wants to be involved to the exclusion of some other party. So I don't think we are talking about facts that are going to hurt, no matter how I rule on this.

THE COURT: If 'left on her own' is the way it's couched, and I haven't heard anything to indicate that she is being abandoned or has no one to provide any care for her -- like I say, if anything, it's the other way around. It appears to be two factions in the family. Both want to have exclusive control over her situation. But I haven't heard anything to indicate that there is a problem in that regard.

As will be seen, the problem with Judge Smith's analysis is that it does not go far enough. One of the so-called "factions" consists of Doris Rich and Arden Rich, who say that Doris Rich should be allowed to manage her own affairs. The other faction consists of Neel Rich and Myrna Rich, who say that either they or their agent, James A. Moore, should manage the personal affairs of Doris Rich, and that Doris Rich should be excluded from having any say over her own affairs. One faction wants to deprive Doris Rich of all of her freedoms and liberties to the exclusion of all others and the other faction wants for Doris Rich to be allowed her full panoply of civil rights.

The leading case on this is Conservatorship of Sanderson (1980) 106 Cal.App.3d 611, 165 Cal.Rptr. 217. That case involved "a strong-willed, stubborn, tough individual [who] stated emphatically that she did not want her son or daughter or anyone else to take care of her affairs." 106 Cal.Rptr. at 614-615. The court ruled that a high standard of proof was required before the appointment of a conservator.

In the case presented here, as will be seen, there was no proof at all that a conservator is required.

"The respondent in a conservatorship proceeding is entitled to a trial by jury with the proposed conservator having the burden of proof beyond reasonable doubt." Baber v. San Bernardino Superior Court (1980) 113 Cal.App.3d 955, 958, 170 Cal.Rptr. 353, 355, citing Conservatorship of Roulet (1979) 23 Cal.3d 219, 1523 Cal.Rptr. 425. The problem with this is that once a temporary conservator is appointed, the conservatee loses all right to conduct her own defense. For example, although the order dated December 2, 1994 set a jury trial to be held on January 20, 1995 at 10:00 AM, no such trial was ever held and indeed it is apparent that, absent a reversal by this court, no such trial will ever be held. Robert Bolt, who was originally hired by Doris Rich to defend her, had defected to the other side by the time of the hearings on December 2 and 21 and was advocating a position contrary to that of his own client, as he himself admitted. Promptly after the order of December 21, 1994, attorney Bolt "waived" his client's right to a jury trial, over the vehement protests of Doris M. Rich. Since then, Doris M. Rich has not been allowed to attend the court hearings involving her own case, even though she has repeatedly insisted on being allowed to attend. Mr. Moore has claimed that, in his capacity of her conservator, he has the authority to decide whether Mrs. Rich will be allowed to attend court and to participate in her own defense, and he has decided that she will not be allowed to attend.

Doris M. Rich has also "fired" her attorney Bolt several times, but Bolt has refused to be fired. Both he and James A. Moore, the "temporary conservator", contend that once a conservator has been appointed, the conservatee lacks the legal capacity to fire her counsel and to hire new counsel.

Doris Rich has hired new counsel to represent her, attorney Craig A. Brandt. In fact, this new counsel was her original counsel, as the record demonstrates. (See Record 13). However, the Solano County Superior Court had not allowed this new attorney to appear in this case, but rather has insisted that Bolt continue as her attorney. Although the appellate courts have upheld the right of a conservatee to contract (see Katz v. Superior Court (1977) 73 Cal.App.3d 952, 966, 141 Cal.Rptr. 234, 243) in the case presented here, the conservatee has been made a prisoner in her own home. Mr. Moore, the conservator, has recently cut the telephone lines, so that Doris M. Rich in no longer allowed even to make outgoing telephone calls. Doris M. Rich is also being heavily drugged and medicated, as a way to stop her protests at her involuntary confinement.

Under the Probate Code conservatorship proceedings, the court "shall appoint a conservator of the person and property or person or property of any adult person who, in the case of a conservatorship of the person, is unable properly to provide for his personal needs for physical health, food, clothing or shelter." This is clearly not the case here. Doris M. Rich owns several houses and apartment buildings in Vallejo and Benicia. She is clearly able to provide all of her own personal needs, including food, clothing and shelter. Indeed, there is no allegation to the contrary. In addition, there is no authority anywhere in the Probate Code for the conservator or for the courts to limit visits by family members, to cut the telephone line, to prevent the conservatee from keeping her medical appointments with doctors of her own choosing, to prevent the conservatee from eating the kind of food that she wants to eat, and to prevent the conservatee from discussing the conservatorship. It is thus apparent that the Solano County Superior Court lacked jurisdiction to enter the broad orders it did, as there is no statutory authority for such orders.



As one goes through the record of this case, one is amazed to find a complete lack of any documents pointing to a conclusion that there is any medical need for the appointment of a conservator of Doris Rich. For example, Dr. Snyder, who has been the Rich family physician for many years, stated in his letter, "the issue is not entirely clear to me as to the need [for a conservator]." (Record 15). If fact, none of the doctors involved in the case, including even doctors brought in by the petitioners as professional expert witnesses to support the appointment of a conservator, have indicated that there is anything medically wrong with Doris Rich so as to require the appointment of a conservator. Indeed, it becomes apparent that the real reason that Neel Rich needs to have a conservator appointed is that he needs the money.

The initial petition for the appointment of a conservator was filed on March 17, 1994. (Record 5). That petition was nothing more than a standard black form. None of the boxes wee checked. No allegations were made. No grounds were given for the appointment of a conservator.

The first actual pleading by the petitioner came on July 27, 1994, when the petitioner filed his "ADDENDUM TO PETITION FOR APPOINTMENT OF A CONSERVATOR". This addendum alleged that there had been "violations" of a stipulation agreed upon. (No such stipulation appears in the record, although there is a later stipulation dated July 29, 1994. (Record 47-50). It alleged that on July 25, 1994, Doris Rich had gone to Continental Bank and attempted to withdraw money from her account. It further alleged that petitioner (Neel Rich) had "converted the accounts" (Record 17, paragraph 2) so as to prevent his mother, Doris Rich, from withdrawing any money from her own accounts. It further alleged that Doris Rich had signed a contract with a property manager, Mr. Shipley, to manage her property and to take over all the rentals. It further alleged that Doris Rich had consulted with an attorney named Bolt to represent her.

It is obvious from the very allegations made by Neel Rich that Doris Rich was not incompetent to manage her own affairs. All of these allegations show that Doris Rich hired a property manager, consulted with an attorney and attempted to withdraw money from her own bank accounts. All of these are things which a normal, healthy person does, especially when faced with a suit such as that brought by Neel Rich.

Note that Neel Rich alleged that Doris Rich had been unable to withdraw money from her bank accounts because the money in those accounts had been "converted" by Neel Rich. "Convert" in this context is a euphemism for larceny. In short, Neel Rich had stolen the money.

It must be said here that Neel Rich has never had any authority over his mother's bank accounts. Myrna Rich had had joint signing authority over some of the bank accounts of Doris Rich, but Neel Rich has never had such signing authority. Neel Rich has never been appointed as the conservator of Doris Rich, either temporary or otherwise. In short, Neel Rich has had no legal authority over the assets or property of Doris Rich whatever.

The petition further states: "Fortunately, Continental Pacific Bank .... called Mr. Rich and advised him of this situation." Why did Continental Pacific Bank call Neel Rich? Neel Rich has never had signing authority over any of the bank accounts of Doris Rich.

The fact is that it was Robert Bolt, the newly hired attorney for Doris Rich, who instructed his client to take all of these actions. When Doris Rich went to Continental Pacific Bank and attempted to withdraw the money, she was accompanied by Kaye Lilla, a bookkeeper employed by Mr. Bolt. Doris Rich was also referred to Mr. Shipley by Robert Bolt. However, Robert Bolt never filed anything in court which explained his role in this. Neel Rich maintains to this day that this was all a part of a nefarious scheme by Doris Rich to steal all of her own money back.

The reason that Neel Rich was so upset that Doris Rich had signed a contract with Mr. Shipley to manage her properties and to collect the rents was that he, Neel Rich, wanted to be the property manager and to collect the rents. This had nothing to do with the ability of Doris Rich to manage her own money. This had everything to do with the desire of Neel Rich to get some of that money.

On December 8, 1994, Neel Rich filed his SECOND AMENDED PETITION. (Record 70-72). This petition alleged that "Arden Van Upp was staying overnight with Doris M. Rich outside of Solano County". (Record 71, para 4). The petition requested that "if Jim Moore is appointed the conservator of the person that he be granted the authority and empowered to secure the person of the proposed conservatee and that this empowerment include an Order directed to law enforcement officers to give Jim Moore assistance in the securing of the person of the proposed conservatee." (Record 72, para. 9).

In short, the petition of Neel Rich requested that his mother be arrested by the law enforcement authorities.

Again, nowhere in this petition is there any allegation that Doris M. Rich is mentally incompetent or incapable of caring for herself. There is no allegation that the basic needs of Doris Rich are not being met. The only allegation which can be made out is that Doris Rich is acting contrary to the wishes of Neel Rich.

Now, let us look at the actual hearings before the court and see what was alleged there.

Almost at the start of the hearing in December 2, 1994, Counsel for appellant made it clear that he was opposing the appointment of a conservator (Transcript of 12/2/94 page 8):

MR. KROLL: My client's position is that Mrs. Rich does not want it. She doesn't need it. She's capable of managing her affairs and taking care of herself if she is not harassed by her other two children, with that help she can manage her own affairs. She understands what's going on. She opposes it. She's asked for an attorney. She's gotten an attorney.

THE COURT: Let me ask you. When you say "help", are we not on the same page at least in the last chapter here where help is needed?

MR. KROLL: Help is needed, but removal of her civil rights is not help. It's not what she wants. It's not the kind of help she needs.

After that, without the taking of any evidence, Judge Smith started in on respondent's attorney by saying (Transcript 9):

THE COURT: Okay. Counsel, you're not hearing me. I'm telling you that there was an order last June ordering your client to move out of the home because of the concerns that the court had about her presence in the home. I have some reservations about your proposal based upon what's happened in the past.

Here, Judge Smith showed his clear bias against Arden Rich and is one of the reasons why Arden Rich exercised her preemptory right to remove Judge Smith. Judge Smith was plainly wrong. The stipulation agreed upon by all parties provided the following: "1. All further proceedings in this matter shall be taken off calendar and all prior orders shall be vacated." (Record 47). One of the main reasons and indeed the main reason why Doris Rich had agreed to this stipulation was that it allowed her daughter, Arden Rich, to stay overnight in her home. All of the attorneys involved had discussed this matter and had agreed upon it. A judge of the Superior Court had signed this stipulation on July 29, 1995. (Record 49). Nowhere did that stipulation require Arden Rich or anybody else to move out of the house. There were no other or further orders entered by the court. Arden Rich had every right to stay in her mother's home, especially since her mother wanted her there. Yet, Judge Smith now said that he had interfered with this right by insisting that Arden Rich move out of the home and that Myrna Rich (whom Doris Rich did not want in the home) be allowed to stay there. All of this occurred without any evidence being taken or hearing conducted in this matter at all.

In response, Mr. O'Hara, attorney for Neel Rich, stated (Transcript of 12/2/94 page 15):

MR. O'HARA: ... Again, we're dealing with children here. It's a very -- and we're dealing with the mother, and it's a sad case. I would strongly urge the court to appoint a temporary conservator at this time for both the person and the estate or just the estate and to order a psychiatric evaluation if that's the courts choice of the psychiatric steps.

Here it should be noted that the case had already gone on for nine months since it was filed in March, 1994. There obviously had been ample time to do a psychiatric examination of Mrs. Rich. Yet, counsel for Neel Rich was asserting that a conservator of the person and the estate now be appointed without any evidence or proof of mental incompetency.

In response, Judge Smith stated:

THE COURT: Here's what I am going to do. I am going to appoint a temporary conservator of the estate only. That would be Mr. Jim Moore.

Thus, without even a single witness being called or a single document produced or offered into evidence, a conservator of the estate was appointed for Doris M. Rich and control of $1.5 million (1.5 million dollars) thereby passed from Doris Rich to Jim Moore. The sole reason given by Judge Smith for such Draconian action was his mistaken belief that Arden Rich had stayed overnight with Doris Rich in violation of his order, whereas, in fact, all counsel had agreed by stipulation that Arden Rich could stay overnight with her mother. Clearly, such an order, based upon no evidence whatever, must be vacated.

The next hearing took place December 13 before Judge Harris. However, that hearing was adjourned because Bolt could not be present. Then, Judge Nail heard the case on December 20, and finally Judge Smith heard the case again on December 21.

When the court convened on December 21, Mr. Kroll requested a continuance because Doris Rich was ill and could not be present on that day. Here it must be remembered that this had been brought as an ex-party motion and it was only on the previous day, December 20, that a hearing had been set for this day. This case had already been pending for nine full months, so clearly there was no great rush which required a decision on that day. Nevertheless, Judge Smith denied the motion for a continuance, thereby violating the fundamental right of the proposed conservatee to be present for the hearings against her.

At this point, it became clear that Bolt had switched sides and was on the side of the proposed conservator. Bolt admitted that he had not consulted with his client, but asked that the hearing go forward without his client's presence (Transcript of 12/21/95 page 5).

THE COURT: Mr. Bolt, that's your client.

MR. BOLT: Yes, with whom I have not consulted because I find the current situation not satisfactory for what I would term good communication between her and I.

THE COURT: Are you troubled about going forward today without her presence?

MR. BOLT: No, I'm not.

This was an obvious and flagrant misrepresentation of counsel. It is a fundamental right that a proposed conservatee has the right to be present in court and to participate in her own defense. Doris M. Rich was not refusing to be present in court. She wanted to be present and had attended on all previous court dates (having invariably been brought to court by Arden Rich). Now, suddenly, when a motion was put on the calendar on one days notice and she was unable to attend, her supposed attorney, who himself had not been available the previous week, was insisting on going forward.

Mr. Kroll then moved pursuant to CCP 170.6 to disqualify Judge Smith. As noted previously, this motion was denied.

Mr. Kroll also moved to disqualify Bolt as counsel in view of Bolt's aforementioned statements that he did not wish to consult with his client, Doris Rich, about this case and that he wanted to proceed with a hearing of this case without the presence of his client (Transcript of 12/21/94 page 8-9).

MR. KROLL: I have one further issue to raise, and that its my clients position, and with all due respect to Mr. Bolt and empathy for the situation he's in, it's our position that he is too conflicted in his representation of Mrs. Rich to adequately and zealously represent her. He is -- despite Mrs. Rich's desire to be here, he is not raising any issue as to her absence and he's indicated to the court that he does not have any satisfactory way of communicating with Mrs. Rich at this time.

However, I would -- I would simply say that Mrs. Rich has been available to him, has been attempting to communicate to him through faxes, notes directly where she has been staying with Arden Rich to him, and to my knowledge and my understanding has not -- he has not responded to her entreaties to have this matter held in abeyance until she's able to be present and so forth.

And it's my feeling that she's entitled to zealous representation at this hearing by someone who is in accord with her position, which has been unequivocal, "I don't want a conservatorship." And if she doesn't want a conservatorship, clearly she doesn't want a temporary conservator appointed.

To this Bolt replied: (Transcript 9):

MR. BOLT: .... I would hope that Mr. Kroll wouldn't force me into a position to disclose my privileged communications with my client.

In fact, there had been no communications by Mr. Bolt with his client, privileged or otherwise. Bolt had already stated previously that he had not communicated with his client at all. (Transcript of 12/21/94 page 5). Bolt has on other occasions not been hesitant to disclose his privileged communications with his client when he found it advantageous to do so.

This motion to disqualify Bolt was also denied. (Record 91, Transcript 9):

THE COURT: Okay. I'm not going to remove Mr. Bolt from the case ... I have seen nothing to indicate that Mr. Bolt is not looking after his client's best interests, given the circumstances and the change of Mrs. Rich's circumstances since the last court appearance. So that request to remove him as counsel is denied.

Here again, it must be noted that there had been no evidence presented in this case. Not a single witness had been called. From where did Judge Smith reach his conclusion that there had been a change of circumstances of Mrs. Rich? Obviously, this conclusion must have arisen from the private meeting held between Neel Rich and Judge Smith on December 8, 1994 (Record 80), a meeting which none of the other parties or their attorneys knew about.

The hearing on the motion for the appointment of a "temporary conservator" then proceeded. The remarkable fact about this hearing was that the petitioners did not call even a single doctor or offer any medical evidence of any kind. The petitioners called three witnesses. These were Beth Rhea, Louzetta Wolfe and Neel Rich.

These testimony of Beth Rhea consisted almost entirely of hearsay and almost all of it was struck. There was nothing of significance in what remained of her testimony.

Louzetta Wolfe testified the longest. Although she testified that she has known Doris Rich since 1942, she never said that she was a friend of Doris Rich. In fact, she said that she had not spoken to Doris Rich in 4 or 5 months and that when she last called Doris Rich, Doris hung up on her.

In contrast, Mrs. Wolfe made it clear that she was a close friend of Myrna Rich (Transcript of 12/21/94, page 88, line 13 to page 89, line 21):

Q What is your relationship to Myrna?
A Myrna is a very fine person. I've known her all her life, and before -- I knew her family before she was born. Myrna wouldn't hurt a flea.
Q And has she ever visited your home?
A I have had Myrna in my home. I visited in their home. I have -- yes, I have been in her home lots of times. We go to the same Masonic Den and used to go when she was a little girl, school parties. My kids grew up with her.
Q When was the last time you socialized with Myrna?
A Socializing with her as socialization, I haven't had -- yesterday and today. I came with her. She brought me up today.
Q She brought you over?
Q You consider Myrna to be a good friend of yours?
A Yes. I think so.
Q And are you aware that, for example, that she's given a piece of real estate to Myrna.
A No.
Q You weren't aware of that.
A No.

In contrast, according to the testimony of Mrs. Wolfe herself, she is not on good terms with Doris Rich (transcript of 12/24/94 page 90, line 27 to page 92, line 12)

Q MR. KROLL: Well, let me ask -- this is a hypothetical question: Did Mrs. Rich ever tell you that she had injured her thumbs?
A Beg your pardon?
Q Did Mrs. Rich, Doris Rich, tell you that she recently injured her thumbs?
A I haven't talked recently in the last, since probably the last trial they had up here.
Q So --
A It's been about four or five months or so many months. I haven't talked to her.
Q You haven't spoken to Mrs. Rich in the last four or five months?
A About four or five months almost.
Q Okay. So prior to four or five months ago, how often were you talking to Mrs. Rich?
A Two or three times a day sometimes, and many times during the week. Seldom ever be a week we didn't talk. Two or three times a week.
Q And then suddenly you stopped talking to her.
A I didn't stop talking to her. She stopped talking to me after the court report of her when they started procedures.
Q Did you call her?
A Called her once and she hung up on me.
Q Did you try again?
A Yes.
Q What happened that time.
A Got an answering machine.
Q So you feel she's angry about you, about something you said in the court report?
A I don't think she's angry with me. I think she's following some directions from some other sources. I don't believe she's angry with me. We've had disagreements at the different times, but Doris is not the person that gets real angry without --
Q So you think she's been directed to hang up on you.
A I think so. I believe so. That's my belief.
Q But she never said that to you?
A I said it was my belief.

The truth is that Doris Rich is angry with Mrs. Wolfe, and for a very understandable reason, which is that Mrs. Wolfe was involved in the original efforts in March, 1994 to have a conservator appointed for Doris Rich.

In any event, nothing in the testimony of Mrs. Wolfe shows that Doris Rich is in need of a conservator. Throughout her testimony, Mrs. Wolfe describes what she believes to be the efforts of Arden Rich to turn her mother against Myrna Rich and Myrna's boyfriend, Ralph Finley. However, throughout these proceedings, Doris Rich has consistently protested at Myrna's involvement with Ralph Finley and there can be no doubt that no "brainwashing" by Arden Rich is needed in order to turn Doris Rich against Ralph Finley.

To the contrary, the testimony of Mrs. Wolfe shows that there always has been an exceptionally close relationship between Doris Rich and Arden Rich (Transcript of 12/21/894 line 14):

Q And it's your testimony that Arden has a lot of influence over her mom, correct?
A Yes.
Q And it's your testimony that if Arden told her to jump off a bridge, she would do so?
A I believe so.
Q I don't know. She acts if she was brainwashed.

The testimony of Mrs. Wolfe that Doris Rich would do anything for her daughter does not show that Doris Rich is in need of a conservator. Many parents would do anything for their child, and yet they are not incompetent or in need of a conservator.

What the testimony of Mrs. Wolfe does show abundantly is that there has long been a feeling of rivalry of Myrna Rich towards Arden Rich and that this rivalry may be the root cause of the bringing of this conservatorship proceeding.

Finally, there was the testimony of Neel Rich. Almost all of his testimony was concerned with the fact that immediately after the hearing on December 2, 1994 when a temporary conservator of the estate had been appointed he had been called in by Bolt who asked him to take Doris Rich to a physician. (Transcript of 12/21/94 page 107, line 1). The next day Arden Rich had picked up her mother and he had not seen them since.

However, Neel Rich made it perfectly clear that he does not like Arden Rich and is not speaking to her (Transcript of 12/21/94, page 119, line 10):

Q MR. KROLL: I gather you don't care much for your sister Arden?
A We have quit speaking since this -- you know, this year, middle part of this year.
Q And let me ask the question again: You don't care much for her; is that correct?
Mr. O'HARA: He just answered that.
THE COURT: You don't like her, do you?
THE WITNESS: No, I don't speak to her anymore.
THE COURT: You don't like her, do you?

What all of this shows is that there is nothing wrong with Doris Rich, but that there is some sort of rivalry or feud going on between Neel Rich, Myrna Rich and Arden Rich which Doris Rich is caught in the middle of. This is an unfortunate circumstance no doubt, but it affords no legal basis for appointing a conservator for Doris M. Rich.

In any event, none of the testimony of the three witnesses had any bearing on the decision of the court. Here is the decision of the court (Transcript of 12/21/94, starting page 133):

THE COURT: All Right. In the matter of the appointment if the temporary conservator of the person of Doris Rich, I have had a chance to go through my notes and also some of the earlier orders that were issued in this matter.

Let me say this, from the outset, that had Mrs. Rich been left in her home of over 30 years, I certainly would continue to agree with the objector that no temporary conservator of the person would be needed.

That was my position on December 2nd. Unfortunately, the next day, her situation changed. Otherwise, there would be no need to limit who would be coming to that home.

She was moved to San Francisco the day after the court issued those orders. And it appears to the court that that move has the following impact on her. She is now physically unable to come to court, notwithstanding the fact that she did make earlier court appearances and, in fact, was in court and looked well to me on December 2nd.

With respect to her health otherwise, it appears that she's required hospitalization, although this is something which has not occurred in the previous 35 years according to her son.

And I would also conclude that the move to San Francisco has significantly interfered with her ability to meet and consult with her attorney based upon the representation of Mr. Bolt here.

It appears, and I alluded to this in my questioning of Mr. Kroll, that despite Arden Van Upp's actions to the establishment of a conservator of the person of Mrs. Rich, she has by her actions, in effect, created a de facto conservatorship. She has chosen where she is going to live, and while there may be a verbal objection from Mrs. Rich, that seems to be consistent with how she deals with everyone.

Arden Van Upp has also chosen the medical care for her and who the medical care providers will be and at the same time has canceled an appointment that was made with a psychiatrist through Mrs. Rich's attorney. So it's clear that Mrs. Van Upp or Arden Van Upp has created a situation which she states in court is not necessary.

I would therefore conclude that based upon things which have occurred since December 2nd, it's necessary that a temporary conservator of the person pending the full hearing on the issue of conservatorship be appointed, and I will appoint Mr. Moore, who's appointed to act as the conservator of the estate previously. It's unfortunate that this has to be done, but I think that the circumstances now justify it given what has happened in the meantime.

I will issue some further specific orders since it's clear that at least some people are not willing to make certain assumptions that should be evidenced by the orders the court issues. And I am referring specifically to the order I issued on December 2nd clearly assumed that Mrs. Rich would remain in her home, otherwise there would be no need to have issued those orders.

I will direct that Mrs. Rich be made available, and I am contemplating, Mr. O'Hara that Mr. Neel Rich would be available to bring her back to Vallejo.

MR. O'HARA: Yes, he is available.

THE COURT: And I am suggesting perhaps 3:00 PM on December 24. That would be this Saturday. That way if Arden Van Upp wishes to have some kind of holiday celebration of any sort with her, that could be done on the weekend before she's returned to Vallejo.

MR. O'Hara: Okay. And excuse me, but I want to be really specific on things, as I think we should be, that this order then that she is going to be made available in San Francisco or in Solano County?

THE COURT: I'm going to direct that she be made available in San Francisco to Neel Rich at 3:00 PM on December 24th. And that will be for returning her to her home of many years.

Arden Van Upp is ordered to make her available at that time. And, counsel, Mr. Kroll, I will direct that you make sure that Ms. Van Upp is aware of the court order that she be made available. I hope law enforcement doesn't get involved in this, but if necessary, then that's what is going to happen. And that is certainly not in her best interest.

I will allow all children of Mrs. Rich, pending the hearing of January, to have reasonable contact with her. However, Mrs., Rich shall remain in her home on York Street in Vallejo. She shall not be moved to any other residence without a prior order of the court, and no overnight visits will be allowed.

Now I'm going to relate back to the December 2nd order and indicate that Myrna, the daughter Myrna, shall be allowed to remain in the home as the medical caretaker and only she will be allowed to spend the night at the York Street home of her mother. That I believe was the existing order. And that includes no friends or associates of Myrna being allowed to remain there either.

I'm going to set up a specific time with Arden Van Upp to visit with her mother so there is no confusion. Arden Van Upp will be allowed to visit with her mother every Saturday between 9:00 PM [sic] and 6:00 PM and it's understood that she will be returned to the York Street home not later than 6:00 PM.

I am further going to issue an order that none of the children or anyone at their request discuss the pending conservatorship proceeding with Mrs. Rich. Mrs. Rich is represented by counsel, and the other siblings are represented, and I think for the ultimate trier of the fact for the long-term conservatorship to get the best possible information would be to do what we can to eliminate undue influence. I know each side believes it's only the other side that's using undue influence in getting the mother to do things, so I am going to order that none of the children or anyone at their request discuss the conservatorship proceedings directly with Mrs. Rich.

Okay. Those are the extent of the orders that I think are appropriate. Any other comments from anyone?

There are so many errors in the above decision of the court that it is hard to know where to start. To begin with the personal prejudice by Judge Smith against the respondents is obvious. He keeps referring to Arden Rich as Arden Van Upp. However, nowhere in the record of this case is the name Arden Van Upp used. Judge Smith must have learned that name from somewhere else, most likely his personal private meetings with Neel Rich.

Judge Smith assumes that Doris Rich was hospitalized because of being removed from her home in Vallejo. However, there was no connection at all between those to events and no testimony in the record whatever to support that conclusion.

The interesting point is that Judge Smith says that his own order is contrary to the best interests of Doris Rich, the person he is supposed to be protecting. Judge Smith stated, "I hope law enforcement doesn't get involved in this, but if necessary, then that's what is going to happen. And that is certainly not in her best interest."

Judge Smith also contradicts what he had stated previously in many places. For example, his original order provided:

The request for psychiatric evaluation of Doris Rich is granted with Doris Rich having veto power to decline participation in the evaluation. If Ms. Rich wishes to participate in a psychiatric evaluation, Mr. Bolt may select the evaluator.

However, in his decision, he stated:

Arden Van Upp has also chosen the medical care for her and who the medical care providers will be and at the same time has canceled an appointment that was made with a psychiatrist through Mrs. Rich's attorney.

For the Story of Doris M. Rich, see: Under House Arrest at Age 90 . For the federal complaint by Doris M. Rich, see: Suit by Doris M. Rich . For the Motion by Doris M. Rich for a Temporary Restraining Order, see: Doris TRO. For the Petition for Rehearing by Doris M. Rich, see: Petition for Rehearing . For the complaint by Doris M. Rich to the California State Bar, see: Complaint to the State Bar . For the complaint to the San Francisco Grand Jury, see: Complaint to the Grand Jury . For the refutation to the report of the Court investigator, see: Answer to Report of Beth Rhea .

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