Filed 7/16/14 Conservatorship of Smith CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


Conservatorship of the Person and Estate of
VIRGINIA SMITH.

MARY VIVIAN,
         Objector and Appellant,                                     A139386
v.
                                                                     (Contra Costa County
ALAN STATMAN as Conservator and                                      Super. Ct. No. MSP10-00095)
Successor Trustee etc.,
         Petitioner and Respondent.


                                                             I.
                                                INTRODUCTION
         In this probate matter, appellant Mary Vivian, acting in propria persona, appeals
from the denial of her motion for reconsideration of an order granting respondent Alan
Statman’s petition for approval of a trust accounting and petition for instructions
requesting authorization to sell or rent the family home (Petition for Instructions).
Appellant contends her motion for reconsideration should have been granted because she
did not have an adequate opportunity to be heard when she arrived late to the hearing on
respondent’s petitions. She further contends she had new facts and law that the court
should have considered. We affirm.




                                                             1
                                             II.
                           PROCEDURAL BACKGROUND
       This is the second appeal arising out of the administration of a trust established by
appellant’s parents, Robert K. Smith, Sr. and Virginia Smith (the Smith Family Trust). In
the first appeal, Conservatorship and Estate of Smith (A127442, Aug. 11, 2010 [nonpub.
opn.]), this court affirmed the naming of respondent Alan Statman as successor trustee of
the Smith Family Trust. We take the following background facts from our prior opinion,
omitting the footnotes:
       “On January 29, 1996, Robert K. Smith, Sr., and his wife, Virginia Smith,
established a revocable trust agreement with assets that included their residence and two
checking accounts. Mr. and Mrs. Smith were designated trustees. The trust named the
couple’s daughter (appellant Mary Vivian) and their son (Robert K. Smith, Jr.) as
successor trustees if Mr. and Mrs. Smith became unable to act as trustees. In an
amendment dated September 27, 2004, the couple named Robert, Jr., as the sole
successor trustee.
       “On December 26, 2008, Robert, Jr., filed petitions seeking appointment as
conservator of the persons and estates of both Mr. and Mrs. Smith, as well as petitions for
appointment as temporary conservator of his parents. The trial court appointed Robert,
Jr., as temporary conservator of the persons of Mr. and Mrs. Smith on January 7, 2009.
Robert, Jr., died four days later, on January 11.
       “Respondent, a private professional conservator, filed a petition seeking
appointment as conservator of the estates of both Mr. and Mrs. Smith on June 8, 2009.
The petition alleged that both proposed conservatees were in medical facilities because of
mental health issues, including dementia. Respondent also filed a petition for
appointment as temporary conservator of the estates of the couple, which the trial court
granted on June 10. Mr. Smith died on June 19.
       “On August 10, 2009, respondent filed a petition for substituted judgment for
modification of the Smiths’ trust to appoint him as successor trustee. (Prob. Code,
§ 2580.) At a hearing on August 25, 2009, the trial court granted the petition on a


                                              2
temporary basis, and allowed appellant time to consult with an attorney regarding her
objection to respondent’s separate petition to name him as conservator.
       “Appellant appeared without an attorney at a hearing on September 22, 2009.
Noting that no family member or other concerned person had filed a petition for
conservatorship, the trial court granted respondent’s petition for conservatorship of the
estate of Mrs. Smith over appellant’s objection. Appellant could have ([Prob. Code,]
§ 1301, subd. (a)) appealed the order, but did not. As for respondent’s petition for
substituted judgment to appoint him as successor trustee, appellant objected at the
September 22 hearing that the 2004 trust amendment naming Robert, Jr., as sole
successor trustee was invalid because her father lacked capacity to alter the trust. The
trial court set the matter for trial on the issue of capacity.
       “At a court trial on November 3, 2009, appellant provided medical records that
purportedly demonstrated that Mr. Smith had been diagnosed with Alzheimer’s disease
and dementia in 2001, and that Mrs. Smith had Alzheimer’s as of February 11, 2004.
The notary who was present when the Smiths signed their 2004 trust amendment testified
on behalf of respondent that Mr. Smith appeared to understand what he was doing when
he executed the amendment, and that she (the notary) was comfortable with Mr. Smith’s
level of awareness when she notarized his signature.
       “The trial court granted the petition to modify the trust, concluding that both
Mr. and Mrs. Smith had capacity at the time of the 2004 trust amendment. Appellant
timely appealed from the trial court’s November 3, 2009, order.” (Fns. omitted.)
       As noted, this court affirmed the trial court’s order granting the petition to modify
the trust in our prior opinion filed on August 11, 2010.
       Upon remand, respondent filed a petition for approval of accounting and for
further instructions. Over appellant’s objections the petition was granted. This ruling
was initially appealed by appellant, but she subsequently voluntarily dismissed that
appeal.
       The principal asset of the Smith Family Trust was the residence at 2031 Mira
Vista Drive in El Cerrito, California (Smith residence), which appellant occupied rent-


                                                3
free for a number of years. The current dispute arose in early 20131 when respondent
wrote to appellant requesting that her status be changed to a tenant for rent, otherwise the
Smith residence would be sold. Appellant refused to become a rent-paying tenant in
order to continue her occupancy of the Smith residence.
       In response, respondent filed the Petition for Instructions, by which respondent
sought, among other things, a determination that there was no necessity for allowing
appellant to continue to live in the Smith residence rent-free. A hearing was scheduled
for May 23. No written objection or response was filed timely by appellant.
       Appellant arrived late for the May 23 hearing, and made her appearance in the
courtroom known only after the court had called and decided the matter by signing a
proposed order submitted by respondent. That order required appellant to notify
respondent of her intention to rent or vacate the property by May 30. If appellant elected
to rent the family home, she could do so with the provision that she sign an agreement to
rent the property at fair market value and pay the first and last months’ rents by June 1.
Otherwise, appellant was required to vacate the property by June 15.
       Appellant filed a motion to reconsider on June 5, with opposition filed by
respondent on July 2. A hearing was set for July 16. Prior to the hearing, appellant filed
a response to the earlier granted petition, and at the hearing appellant presented an oral
statement in opposition to the original petition and in support of her motion to reconsider.
The court then denied the motion to reconsider.




       1
           All further dates are in the 2013 calendar year, unless otherwise indicated.


                                               4
       A subsequent judgment was issued on July 30, and respondent obtained possession
of the Smith residence from appellant on August 15, with assistance from the Contra
Costa County Sheriff’s office. This appeal followed.2
                                             III.
                                       DISCUSSION
       A party’s right to seek reconsideration of an order is governed by Code of Civil
Procedure section 1008,3 which provides, in pertinent part: “When an application for an
order has been made to a judge, or to a court, and refused in whole or in part, or granted,
or granted conditionally, or on terms, any party affected by the order may, within 10 days
after service upon the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law, make application to the same judge or court that
made the order, to reconsider the matter and modify, amend, or revoke the prior order.
The party making the application shall state by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new or
different facts, circumstances, or law are claimed to be shown.” (§ 1008, subd. (a).)
       “Section 1008 allows the trial court to reconsider and modify, amend or revoke its
prior order when the moving party shows a different state of facts exists. . . . ‘[T]he party
seeking reconsideration must provide not only new evidence but also a satisfactory


       2
           An amendment to section 1008, subdivision (g), effective January 1, 2012, has
clarified that “[a]n order denying a motion for reconsideration made pursuant to
subdivision (a) is not separately appealable. However, if the order that was the subject of
a motion for reconsideration is appealable, the denial of the motion for reconsideration is
reviewable as part of an appeal from that order.” (§ 1008, subd. (g); see Legis. Counsel’s
Dig., Assem. Bill No. 1067 (2011–2012 Reg. Sess.) § 1.) Thus, this amendment resolved
the split in favor of the majority of courts that had concluded that: (1) an order denying a
motion for reconsideration is not appealable, even when based on new facts and law, but
(2) the denial of a motion for reconsideration is reviewable if the request for
reconsideration is made from an appealable judgment or order. (Powell v. County of
Orange (2011) 197 Cal.App.4th 1573, 1577.) Respondent raises no procedural issues
that would bar our consideration of appellant’s appeal from the denial of her motion to
reconsider, and we proceed to the merits of that claim.
       3
           All further undesignated statutory references are to the Code of Civil Procedure.


                                              5
explanation for the failure to produce that evidence at an earlier time.’ [Citation.]”
(Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)
       This diligence requirement is also applicable when the motion for reconsideration
is based on different law. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th
1192, 1200.) Thus, if the motion is based on different law, the moving party must
provide a satisfactory explanation for failing to cite that law in arguing the first motion.
A contrary rule would “remove all incentive for parties to expeditiously marshall the law
in support of their case. If counsel need not explain the failure to earlier produce
pertinent legal authority that was available, the ability of a party to obtain reconsideration
would expand in inverse relationship to the competence of counsel. Without a diligence
requirement the number of times a court could be required to reconsider its prior orders
would be limited only by the ability of counsel to belatedly conjure a legal theory
different from those previously rejected, which is not much of a limitation.” (Id. at
p. 1199.)
       The trial court denied appellant’s motion to reconsider on the following grounds:
(1) appellant’s tardiness and resulting inability to appear for oral argument did not
constitute a ground for granting reconsideration; (2) appellant failed to show any new
facts or law that were not previously known or discoverable; and (3) appellant’s motion
and supporting declaration were unsigned, and therefore “procedurally insufficient.” We
review a trial court’s ruling on a motion for reconsideration under the abuse of discretion
standard. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
       In reviewing the motion, it is clear that appellant’s motion to reconsider was based
largely, if not solely, on the fact that she arrived late for the May 23 hearing and lost the
opportunity to present oral argument in opposition to respondent’s motions, and she
should have been excused from that absence. Citing Garcia v. Hejmadi (1997) 58
Cal.App.4th 674, 690 (Garcia), the trial court rejected appellant’s argument and found
that a motion to reconsider cannot be premised on the loss of the opportunity to argue in
opposition to the underlying motion because it is collateral to the merits of the issues in



                                              6
the parties’ dispute. (Id. at p. 690; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494,
1500 & fn. 3.)
       In seeking reconsideration, appellant did present the trial court with an opposition
to respondent’s Petition for Instructions. However, no explanation has been offered as to
why appellant did not present this opposition before the petitions were heard and decided,
and instead waited until her motion to reconsideration was filed to present it. Equally as
important, appellant does not claim that at the time of the original ruling she was unaware
of the facts contained in her unverified pleadings or in the oral statement she read to the
court when her motion to reconsider was heard. Consequently, appellant’s motion for
reconsideration failed to meet the fundamental requirement that it be based on “new or
different facts, circumstances, or law . . . .” (§ 1008, subd. (a); see In re Marriage of
Herr (2009) 174 Cal.App.4th 1463, 1468 [facts of which movant was aware at time of
original ruling are not “new or different” within meaning of § 1008]; Garcia, supra, 58
Cal.App.4th at p. 690 [matters raised by plaintiff in his motion for reconsideration
consisted of information always within his possession, and he gave no satisfactory
explanation for not bringing it out earlier].)
       For these reasons, the trial court did not abuse its discretion in denying appellant’s
motion to reconsider.4




       4
        Because of the ample grounds otherwise existing which support the denial of the
motion, we need not consider the court’s alternative ground that appellant’s motion was
procedurally defective.


                                                 7
                                             IV.
                                       DISPOSITION
       The order denying appellant’s motion to reconsider, and resulting judgment, are
affirmed. In the interests of justice, the parties are each to bear their respective costs on
appeal.




                                                   _________________________
                                                   RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




                                               8
