Wurster v. Sherin CA5

Opinion

Filed 9/10/26 Wurster v. Sherin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DANIELLE WURSTER, F089809 Petitioner and Respondent, (Super. Ct. No. BPB-23-003361) v. MARY DEAN SHERIN, OPINION Objector and Appellant.

APPEAL from an order of the Superior Court of Kern County. Brett V. Myers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Darling & Wilson and Joshua G. Wilson for Objector and Appellant. Van Sciver Law and Kurt Van Sciver for Petitioner and Respondent. -ooOoo- Mary Dean Sherin, an elderly woman, executed a durable, general power of attorney designating her nephew, Jeffrey Middleton, as her attorney in fact. Sherin’s daughter, Danielle Wurster, subsequently filed a petition for an order to compel an accounting by Middleton as the attorney in fact. Sherin and Middleton were represented by the same counsel in the proceeding. While discovery and an evidentiary hearing were pending in the matter, Middleton filed an accounting and a related petition to approve the accounting. Sherin then moved to dismiss Wurster’s petition to compel accounting, as moot. The probate court denied Sherin’s motion to dismiss Wurster’s petition. Sherin appealed. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. Wurster’s Petition for Order to Compel Accounting from Attorney in Fact On December 4, 2023, Wurster filed in the Kern County Superior Court, a “PETITION FOR ORDER TO COMPEL ACCOUNTING BY ATTORNEY-IN-FACT,” along with supporting documentation. Wurster’s petition sought to compel an accounting from Middleton, who, as mentioned, was appointed by Sherin as her attorney in fact, pursuant to a durable, general power of attorney. Middleton is the son of Sherin’s sister, and Sherin executed the power of attorney instrument on November 18, 2021. Shortly thereafter, on December 8, 2021, Sherin’s husband, Ronald Sherin (Ronald), passed away from cancer. Wurster is Sherin’s sole surviving child. Sherin’s other children—a son and a daughter—are both deceased. Wurster’s petition noted that “Sherin suffers from memory loss and mental health issues.” The petition added: “At the time of the execution [of the power of attorney], on information and belief, Sherin was not of sound mind to sign a power of attorney.” Wurster’s petition pointed out that Sherin and Ronald owned their residence on Kimberly Avenue in Bakersfield. The petition stated: “On or about June 29, 2022, Sherin purportedly executed a deed to transfer title to [the residence] into [the names of Middleton and herself as joint tenants].” The deed in question was attached as an exhibit to the petition. The deed, which was signed on June 28, 2022, and recorded on June 29, 2022, noted, among other things: “This is a bonafide gift and the grantor received 2. nothing in return.” (Boldface omitted.) Wurster’s petition further stated: “After acquiring title to the [p]roperty, Middleton neglected to pay the [p]roperty taxes [for the residence].” Wurster’s petition added: “The [p]roperty taxes remained unpaid until [p]etitioner took it upon herself to pay the [p]roperty taxes.” Wurster’s petition also indicated that Ronald had operated a furniture refinishing business or shop during his lifetime. The petition stated: “However, Middleton has since sold all [s]hop tools, furnishing[s], and machinery, and is currently renting out the space.” The petition noted: “Middleton refuses to provide [p]etitioner, an heir to Ronald’s estate, with an accounting of his actions involving the [s]hop and for his actions as attorney-in- fact for Sherin.” Wurster’s petition specified: “On April 14, 2023, counsel for [p]etitioner sent a letter to Middleton requesting that Middleton provide an accounting for his actions as power of attorney for Sherin, as well as a copy of the power of attorney.” Wurster attached a copy of the April 14, 2023, letter to her petition. Wurster’s petition further specified: “On June 1, 2023, Middleton’s counsel sent a response letter [to Wurster’s counsel] indicating, ‘As an attorney in fact[, Middelton’s] duties run solely to [Sherin]. Your client has absolutely no right to any information whatsoever from [Middleton].’ ” Wurster attached to her petition, a copy of the response from Middleton’s counsel. Wurster’s petition added: “Middleton has refused to provide an accounting detailing his actions as power of attorney for Sherin. [¶] [] It has now been more than 60 days since April 14, 2023, and Middleton has failed to provide a proper accounting.” Wurster’s petition concluded: “Due to the inactions and failures of Middleton to provide an accounting, [p]etitioner seeks an order from the [c]ourt ordering Middleton to file an accounting of his actions as attorney-in-fact for Sherin, from a period dating back 3. to 2021 to the present, in a form that satisfies the requirements of California Probate Code section 1060.”1 Wurster also sought attorney fees and costs. On March 14, 2024, Sherin filed an objection to Wurster’s petition to compel accounting by attorney in fact. In her objection, Sherin stated that she willingly granted power of attorney to Middleton and that Middleton had refused to comply with Wurster’s demand for an accounting on Sherin’s instructions. Sherin also raised several affirmative defenses to the petition to compel accounting. The probate court held a hearing in the matter on March 28, 2024. Both Wurster’s counsel and counsel for Sherin and Middleton appeared at the hearing (Sherin and Middleton are represented by the same counsel). Counsel stated that Middelton would also file an objection to the petition. The court minutes from the hearing noted: “Objections to be filed and served on or before 05/01/2024 by close of business day or they may be deemed waived pursuant to CRC 7.801.” Middleton did not file an objection to Wurster’s petition.2 B. Durable Power of Attorney Instrument Executed by Sherin on November 18, 2021 The power of attorney instrument executed by Sherin is a detailed, 11-page document entitled, “DURABLE POWER OF ATTORNEY AND NOMINATION OF CONSERVATOR.” (Boldface omitted.) The first page of the instrument serves as a summary of its scope, in the form of a “NOTICE TO PERSON EXECUTING THIS DOCUMENT” (notice). (Boldface omitted.) The notice states:

“This document may provide the person you designate as your attorney-in- fact (agent) with broad powers to manage your financial affairs, including 1 Subsequent statutory references are to the Probate Code unless otherwise specified. 2 There is no objection from Middleton in the record on appeal.

4. the authority to manage, dispose of, sell, convey, and encumber your real and personal property, to use your property as security if your agent borrows money on your behalf, and to take actions to carry out your estate plan.” [¶] … [¶]

“…This document does not give your agent the power to accept or receive any of your property, in trust or otherwise, as a gift, unless you specifically authorize the agent to accept or receive a gift.”

“… These powers will exist for an indefinite period of time unless you limit their duration in this document. These powers will continue to exist notwithstanding your subsequent incapacity.” [¶] … [¶]

“… Your agent has no duty to act unless you and your agent agree otherwise in writing.” (Full capitalization and boldface omitted.) As for the instrument itself, it appoints Middleton as Sherin’s “true and lawful attorney in fact,” with wide-ranging enumerated and general powers. For example, the instrument empowers Middleton to “manage, control, lease, sublease and otherwise act concerning any real property which the principal may own.” Also, Middleton is empowered to “grant, sell, transfer, mortgage, deed in trust, convey, pledge, and otherwise encumber and deal in all property, real and personal, which the principal may own.” The power of attorney instrument enables Middleton to “deposit in and draw on any checking, savings, agency, or other accounts that the principal may have in any banks or financial institutions, and any accounts with securities brokers or other commercial institutions, and to establish and terminate all such accounts.” In addition, Middleton was given authority to “use any credit cards in [Sherin’s] name to make purchases and to sign charge slips on behalf of the principal as may be required to use such credit cards.” Middleton was also empowered to manage taxes and investments on behalf of Sherin. The power of attorney instrument also confers general powers on Middleton. Thus, the instrument enables Middleton “[g]enerally to do, execute, and perform any other act, deed, matter or thing that in the opinion of the agent ought to be done, executed, or performed in conjunction with this power of attorney, of every kind and 5. nature, as fully and effectively as the principal could do if personally present.” The instrument further provides: “The enumeration of specific items, acts, rights or powers in this instrument does not limit or restrict, and is not to be construed or interpreted as limiting or restricting, the general powers granted to the agent except where powers are expressly restricted. The agent is authorized and directed to commence enforcement proceedings, at the principal’s expense, against any third party who fails to honor this durable power of attorney.” Under the power of attorney instrument, Middleton is “entitled to fair and reasonable compensation for services rendered as agent under [the] instrument.” The instrument further provides: “In addition to compensation for services, the agent shall be entitled to reimbursement for all out-of-pocket expenses incurred in administering the principal’s affairs.” The power of attorney instrument also notes: “If a conservatorship of the principal’s person or estate or both is deemed necessary, the principal hereby nominates [Middleton] as a conservator of the principal’s person and estate.” The durable power of attorney became “effective immediately on execution” and is set to “continue indefinitely until specifically revoked or terminated by death, even if the principal later becomes incapacitated.”

C. Discovery Dispute in the Probate Court On September 30, 2024, Wurster filed motions to compel further discovery responses from Sherin. More specifically, Wurster filed (1) a motion to compel Sherin to provide further responses to interrogatories propounded by Wurster, (2) a motion to compel further responses to requests for production of documents, and (3) a motion to compel further responses to requests for admission. Wurster’s attorney filed declarations in support of the motions. In his declarations, Wurster’s counsel stated: “Discovery demands were served on June 27, 2024 by hand delivery. The due date was July 29.

6. Sherin requested an extension to August 9, which was granted. Sherin then served responses by mail on August 9, which were not received until August 12. Every response was an objection.” Wurster’s attorney added in the declarations: “Petitioner sent a meet- and-confer letter on September 17 demanding that substantive responses be provided. Sherin sent a response on September 25, stating that she would not provide substantive responses. Petitioner sent a second letter on September 25, which Sherin did not respond to.” Sherin filed oppositions to Wurster’s motions to compel further discovery responses. Wurster filed reply briefs in support of her three motions. On January 23, 2025, the probate court held a hearing on Wurster’s motions to compel further discovery responses. The same day, the court issued a detailed written ruling ordering Sherin to provide further discovery responses. More specifically, the court overruled many of Sherin’s objections to Wurster’s discovery requests and ordered Sherin to provide additional responses to several requests, subject to specified protective orders. On January 28, 2025, Sherin responded by filing an “EX PARTE APPLICATION TO STAY ORDER TO COMPEL DISCOVERY RESPONSES PENDING APPELLATE REVIEW,” in which she indicated she “intend[ed] to challenge the court’s order through a petition to the Court of Appeal for extraordinary writ.” On February 3, 2025, the probate court issued an “EX PARTE ORDER STAYING ORDER COMPELLING RESPONSES ENTERED IN THE MINUTES OF THE COURT JANUARY 23, 2025.” The court stayed its discovery order pending final disposition of any writ proceeding brought by Sherin.

D. Middleton’s Petition for Settlement of First Account Current of Agent Under Durable Power of Attorney On February 13, 2025, Middleton filed a “PETITION FOR SETTLEMENT OF FIRST ACCOUNT CURRENT OF AGENT UNDER DURABLE POWER OF 7. ATTORNEY” (petition or petition to approve accounting). Middleton’s petition was, in substance, two pages long.3 It stated that Middleton had not taken any action as Sherin’s agent and included a “summary of account” reflecting that Middleton incurred no charges and posted no credits during the entire period covered in the account, that is, November 18, 2021, to January 31, 2025. More specifically, the summary of account reflected starting and ending balances of “$0.00” under separate “charges” and “credits” categories, with no intervening activity or transactions. The durable power of attorney executed by Sherin was attached to Middleton’s petition to approve accounting. Also attached to the petition were a few “schedules” that showed no activity and reflected balances of “$0.00” under various categories. For example, one schedule entitled “property on hand” reflected a “market value” balance of $0.00. (Capitalization omitted.) Middleton’s petition also requested that “[t]he first account current … be settled, allowed, and approved.” 4 5 E. Sherin’s Motion to Dismiss Wurster’s Petition for Order to Compel Accounting by Attorney In Fact On February 19, 2025, Sherin filed a request for judicial notice, in which she asked the probate court to take judicial notice of Middleton’s “petition for settlement of first account current of agent under durable power of attorney filed February 13, 2025,” (capitalization omitted) for purposes of Wurster’s pending petition to compel accounting by attorney in fact.

3 A verification appears on the third page of the document. 4 See section 1064, subdivision (b), which provides: “The filing of an account shall be deemed to include a petition requesting its approval.” 5 On August 18, 2025, during the pendency of this appeal, Wurster filed an objection to Middleton’s petition and accounting. On December 22, 2025, Sherin filed a request asking us to take judicial notice of Wurster’s objection to Middleton’s petition and accounting. Sherin’s request for judicial notice is hereby granted.

8. At the same time, Sherin filed a “MOTION TO DISMISS WURSTER’S PETITION FOR ORDER TO COMPEL ACCOUNTING BY ATTORNEY IN FACT.” (Italics added.) Sherin’s motion to dismiss stated: “This motion is made on the grounds that Jeff Middleton having filed an accounting with this court on February 13, 2025, that Wurster’s [p]etition is rendered moot and that the [p]etition is therefore, ‘not reasonably necessary for the protection of the interests of the principal.’ (Prob. Code, § 4543.)”6 Sherin’s motion posited that since Middleton had filed his accounting, Wurster’s petition was “now moot” and subject to dismissal pursuant to section 4543. In this vein, the motion stated: “[Wurster’s] [p]etition seeks an order compelling Middleton to account. He has filed his accounting. The court cannot render effectual relief on this [p]etition. It is moot. As such, its continued prosecution cannot protect Sherin’s interests. The [p]etition must be dismissed.” On March 3, 2025, Wurster filed an opposition to Sherin’s motion to dismiss Wurster’s petition to compel accounting. Wurster’s opposition noted: “[Wurster’s] petition [to compel accounting] … alleges that Jeff Middleton has taken financial advantage of Sherin through obtaining a deed to real property and sale and abuse of business assets under the power of attorney, and that Middleton has failed to pay property taxes for Sherin thereby demonstrating his failure to act under his fiduciary duties.” Wurster’s opposition further noted that after filing her petition, Wurster served discovery demands on Sherin and eventually had to file “motions to compel, which were largely granted on January 23, 2025.” Wurster’s opposition pointed out that counsel for Sherin and Middleton thereafter “sought and received a stay on February 6, 2025 [in order to] appeal the [court’s] January 23, 2025 [discovery] order,” but “[n]o writ has been filed as of March 3, 2025.”

6 Section 4543 provides that “[t]he court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the principal or the principal’s estate.”

9. Wurster’s opposition continued: “Instead, [counsel for Sherin and Middleton] then filed a petition to approve an accounting from Middleton on February 13, 2025. [Citation.] [Counsel for Sherin and Middleton next] sought to dismiss the initial petition, which would have the result (if granted) of further evading the discovery demands of [Wurster] and thwarting the [c]ourt’s [discovery] order of January 23, 2025.” Wurster’s opposition added: “The ‘accounting’ relied on by Sherin is a sham.” The opposition continued: “The ‘accounting’ … merely states that property on hand was $0.00; there were no transactions; and the property at the end was $0.00.” Wurster’s opposition further stated: “[The accounting] essentially contends that Middleton has not acted as power of attorney.” The opposition posited: “This is the same factual dispute as [Wurster’s] petition—did Middleton act and what did he do? The discovery propounded by Wurster would determine these issues. The [c]ourt has ordered Sherin to comply with her obligations and respond. [¶] The new petition [to approve accounting] and this motion [to dismiss] are simply attempts to make an ‘end-run’ around the [c]ourt’s [discovery] order. The [c]ourt should deny the motion.” (Italics added.) Wurster’s opposition also noted that “[b]ecause the facts are disputed, the [c]ourt must hold an evidentiary hearing [on Wurster’s petition] and cannot dismiss [it] on a motion.”7 The opposition further stated: “Moreover, Darling & Wilson, PC [counsel for Sherin and Middleton] filed the sham ‘accounting’ on behalf of Jeffrey Middleton … and thus has a clear conflict of interest, as it represents both Sherin and Middleton—principal and attorney-in-fact. A motion to disqualify is set for March 26. This conflict of interest demonstrates that dismissal is not in Sherin’s interests.”

7 On March 5, 2025, Wurster filed a “request for evidentiary hearing,” (capitalization and boldface omitted) which stated: “[P]etitioner Danielle Wurster … hereby requests an evidentiary hearing on her petition to compel accounting, which is already set for hearing on September 8, 2025.”

10. Wurster’s opposition concluded: “Sherin has brought a[n] invalid motion based on a sham accounting through a law firm suffering from an egregious conflict of interest. These facts demonstrate that [Wurster’s] petition must be determined on the merits for Sherin’s protection.”8 On March 14, 2025, the probate court held a hearing on Sherin’s motion to dismiss Wurster’s petition (see below). The court denied the motion to dismiss without prejudice. The court kept the already-existing stay on discovery in place. The court did not explain its reasons for denying the motion to dismiss or otherwise elaborate on its ruling. On April 4, 2025, the court entered a signed order delineating its ruling.

F. Wurster’s Motion to Disqualify Darling & Wilson, PC On March 26, 2025, the probate court held a hearing on Wurster’s motion for disqualification of Darling & Wilson, PC. The papers filed by the parties on this issue are not in the record on appeal, however the hearing is reflected on the court’s register of actions that is included in the record on appeal. The probate court’s entry on the register of actions as to this motion hearing states: “The [c]ourt’s tentative is to grant the motion to disqualify. The [c]ourt gives counsel an opportunity to argue the matter. All [c]ounsel argue the matter. Counsel Joshua Wilson reports he has a conflict waiver signed by the parties and requests it be taken under seal if the [c]ourt wishes to review the document. The [c]ourt makes the following findings and orders: The [c]ourt will accept the conflict waiver under seal. The [c]ourt takes the matter under submission and will issue a [r]uling.” (Italics added.) The probate court issued its ruling the next day. The court denied Wurster’s motion to disqualify Darling & Wilson, PC.

G. Sherin’s Writ Petition Challenging Probate Court’s January 23, 2025 Order Compelling Discovery Responses 8 Sherin filed a reply to Wurster’s opposition to Sherin’s motion to dismiss.

11. On March 25, 2025, Sherin filed a petition for writ of mandate in this court, challenging the probate court’s January 23, 2025 order compelling her to furnish responses to Wurster’s discovery requests. (Sherin v. Superior Court of Kern County, case No. F089533.) On July 15, 2025, this court issued an order in the case. This court’s order stated: “Section 4541 permits a petition to compel an accounting seeking to ‘[c]ompel[] the attorney-in-fact to submit the attorney-in-fact’s accounts or report the attorney-in-fact’s acts as attorney-in-fact to the principal, the spouse of the principal, the conservator of the person or the estate of the principal, or to any other person required by the court in its discretion, if the attorney-in-fact has failed to submit an accounting or report within 60 days after written request from the person filing the petition.’ (§ 4541, subd. (c) [].)” (Italics added.) This court’s order continued: “Section 4540, subdivision (d) permits such a petition to be filed by ‘[a] relative of the principal.’ Accordingly, [Wurster], who is [Sherin’s] daughter, was permitted to file a petition under section 4541. Respondent court properly rejected [Sherin’s] assertion that [Wurster] is not suitable to receive discovery.” This court’s order further provided: “Except for the compelling of [Sherin’s] Social Security number in special interrogatory No. 77, it appears to this court that respondent court did not abuse its discretion in compelling [Sherin] to disclose her financial and medical information. The information requested is relevant to the issues raised by [Wurster] and is therefore generally discoverable. [Citation.] Respondent court conducted a balancing inquiry into the competing interests, as is required, and further placed a protective order against the dissemination of the information.” This court’s order added: “[However, Wurster] did not establish why the Social Security number is necessary here [and] [n]o feasible alternatives were discussed.” Therefore, this court issued an alternative writ giving the probate court the option to reconsider “the portion of its January 23, 2025 order compelling discovery of [Sherin’s] Social Security number.” The alternative writ was subsequently discharged 12. after the probate court conducted further proceedings and denied Wurster’s motion to compel disclosure of Sherin’s Social Security number. This court did not disturb any other aspect of the probate court’s discovery-related ruling, which thus largely remained in effect.

H. Sherin Appealed from Probate Court’s March 14, 2025 Order Denying Her Motion to Dismiss Wurster’s Petition to Compel Accounting On May 7, 2025, Sherin filed a notice of appeal from the probate court’s March 14, 2025 order denying her motion to dismiss Wurster’s petition to compel accounting, thus commencing the instant appeal. As explained above, in her motion to dismiss, Sherin had contended that Wurster’s petition to compel accounting had been rendered moot by Middleton’s filing of his self-styled accounting.

I. Middleton’s Motion for Summary Judgment as to Wurster’s Objection to His Petition to Approve Accounting; Hearing Held on December 31, 2025 While Sherin’s appeal from the probate court’s order denying her motion to dismiss Wurster’s petition to compel accounting was pending in this court,9 Middleton filed in the probate court a motion for summary judgment as to the objection filed by Wurster to his petition to approve accounting.10 Middleton asserted in his summary judgment motion that Wurster lacked standing to object to his petition to approve 9 As noted, Sherin filed her notice of appeal on May 7, 2025; it was lodged in this court on May 14, 2025. Sherin filed her opening brief on December 22, 2025, Wurster filed her responsive brief on March 6, 2026, and Sherin filed her reply brief on May 15, 2026. 10 During the pendency of this appeal, this court granted Wurster’s request to take judicial notice of (1) Middleton’s motion for summary judgment and supporting papers, and (2) the probate court’s minutes of the hearing on the motion for summary judgment.

13. accounting. He filed the motion in September 2025, and the court heard it on December 31, 2025. The court’s ruling is not included in the record on appeal.11 J. Sherin and Middleton’s Tag Team Approach As noted, Sherin and Middleton are represented by the same counsel in the instant matter. Sherin and Middleton have taken a tag team approach which, along with the timing of their filings, introduced an element of procedural gymnastics into the proceedings. Specifically, Middleton filed his petition to approve accounting shortly after the probate court granted Wurster’s motions to compel discovery responses, while a discovery stay was in place. Sherin followed up by filing a motion to dismiss Wurster’s petition to compel accounting, on grounds it was moot. When her motion to dismiss was denied by the probate court, Sherin filed a writ petition challenging the court’s discovery order. After this court largely affirmed the probate court’s discovery order in Sherin’s writ proceeding, Middleton filed a summary judgment motion, alleging Wurster lacked standing to object to his petition to approve accounting. Meanwhile, Sherin filed the instant appeal challenging the probate court’s denial of her motion to dismiss. Notably, Middleton’s petition to approve accounting split the proceedings into two tracks. The original track arose from Wurster’s petition to compel accounting by attorney in fact; Sherin is the objector to this petition. The filing of Middleton’s petition to approve accounting gave rise to a second track; Wurster is the objector to this petition. In the second track, as noted, Middleton filed a motion for summary judgment arguing that Wurster lacked standing to contest or object to his petition to approve accounting. The summary judgment motion papers stated that “Middleton’s activities are entirely irrelevant to the issue of Wurster’[s] standing.” The motion papers further 11 Wurster’s counsel noted in Wurster’s responsive brief on appeal, filed March 6, 2026, that the probate court “has not issued a ruling yet” on Middleton’s motion for summary judgment.

14. asserted: “If the court grants the motion[,] the [p]etition [to approve accounting] will remain pending as an unopposed petition subject to further proceedings.” Thus, on one track, Sherin posited that Wurster’s petition was mooted by Middleton’s petition to approve accounting. While on the other track, Middleton took the position that Wurster lacked standing to contest his accounting. This two-pronged approach boils down to the idea that Middleton is entitled to supply a self-styled accounting, without either Sherin or himself providing full discovery to Wurster regarding the state of Sherin’s affairs.12 Sherin and Middleton’s tag team approach has apparently not only obstructed Wurster’s ability to obtain discovery relevant to the claims in her petition, but also her ability to proceed to a court trial or evidentiary hearing on her petition. An evidentiary hearing on Wurster’s petition would encompass the questions of (1) the necessity of an accounting, and (2) the scope of any requisite accounting, that is, what issues must be addressed in any potential further accounting and report from Middleton. DISCUSSION I. PROBATE COURT DID NOT ABUSE ITS DISCRETION IN DENYING SHERIN’S MOTION TO DISMISS WURSTER’S PETITION TO COMPEL ACCOUNTING Sherin challenges the probate court’s order denying her motion to dismiss Wurster’s petition to compel accounting by attorney in fact. We are not persuaded by Sherin’s arguments and affirm the court’s order.

A. Applicable Legal Framework The Power of Attorney Law appears in Division 4.5 of the Probate Code. (§ 4000 et seq.) Section 4541 provides that “[a] petition may be filed under this part” for various 12 The probate court’s ruling denying Sherin’s motion to dismiss—from which ruling this appeal arises—expressly kept in place an already-existing discovery stay with regard to proceedings on Wurster’s petition. In the absence of any indication to the contrary, we assume the discovery stay has remained in place during the pendency of this appeal.

15. enumerated purposes, including “[c]ompelling the attorney-in-fact to submit the attorney- in-fact’s accounts or report the attorney-in-fact’s acts as attorney-in-fact to the principal, the spouse of the principal, the conservator of the person or estate of the principal, or to any other person required by the court in its discretion, if the attorney-in-fact has failed to submit an accounting or report within 60 days after written request from the person filing the petition.” (§ 4541, subd. (c), italics added.) In addition, section 4540 provides that “a petition may be filed under this part” by the attorney in fact, the principal, the spouse of the principal, a relative of the principal, the conservator of the person or estate of the principal, among other enumerated persons. (See § 4540, subd. (d) [a relative of the principal], italics added.) Further, section 4543 provides: “The court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the principal or the principal’s estate.” Here, Wurster—as Sherin’s daughter and relative— properly brought her petition to compel accounting by attorney in fact under section 4540, subdivision (d). Further, under section 4541, subdivision (c), it is well within the probate court’s discretion to require Middleton to submit his accounts and report his acts as attorney in fact to Wurster. As for Sherin’s motion to dismiss Wurster’s petition, it was brought under section 4543.

B. Standard of Review As noted, Sherin appeals from the probate court’s order denying her motion to dismiss Wurster’s petition to compel accounting, which motion was brought under section 4543. Both parties agree that because section 4543 is permissive and not mandatory, Sherin’s challenge to the court’s order is subject to abuse of discretion review. We will apply the abuse of discretion standard of review. (See Gregge v. Hugill 16. (2016) 1 Cal.App.5th 561, 567 [applying abuse of discretion standard of review to a dismissal where applicable statute was permissive and not mandatory].)

C. Background: Hearing on Sherin’s Motion to Dismiss Wurster’s Petition On March 14, 2025, the probate court held a hearing on Sherin’s motion to dismiss Wurster’s petition to compel accounting. At the hearing, counsel for Sherin and Middleton emphasized that Middleton had filed an accounting, along with a petition to approve accounting, and that, for purposes of Wurster’s petition to compel accounting, the court had taken judicial notice of the fact that the accounting was filed. Counsel added: “I think in [Wurster’s] opposition [to Sherin’s motion to dismiss, she] believe[s] the accounting is, as they call it, a sham. We believe it’s – our client believes it’s what occurred.” Counsel continued: “They’ve received a copy as far as the judicial notice [was granted].” Counsel further stated: “This proceeding [i.e., Wurster’s petition] is moot.” Counsel concluded: “If they have real complaints, they should bring the real complaints in the [other] petition [i.e., Middleton’s petition].” Wurster’s counsel responded: “Essentially, if the [c]ourt grants this motion [to dismiss], I assume the position that will be taken by their side is discovery is off the table. They don’t have to respond to anything. That petition is gone.” Wurster’s counsel continued: “We’ll have to file a new objection, issue the same discovery, receive the same objections, make the same motion[s] to compel, and then the [c]ourt will have to issue the same order. And that process I assume will take six to nine months to get us to that point.” Counsel added: “So this isn’t about providing an accounting or making an accounting as power of attorney. This is about getting around the [c]ourt’s order to comply with discovery obligation[s] in this case.” Wurster’s counsel noted: “And I assume if we object to Mr. Middleton’s petition without having our current petition on, they’ll say, well, you can’t compel us to issue a new accounting because the petition to compel got dismissed. Now you need to bring a 17. new petition to compel.” Wurster’s counsel further noted: “They’re relying simply on a petition that’s newly filed that’s going to be objected to. So it’s inappropriate at the present time to dismiss [our] case and not allow us to conduct the discovery and hold our evidentiary hearing.” Counsel pointed out that he had made a formal request for an evidentiary hearing, which was set for September 2025. Wurster’s counsel added: “There’s numerous issues that remain even with the filing of Mr. Middleton’s document. [¶] Has an accounting actually been made; is a further accounting from Mr. Middleton required; and who pays for our fees and costs on our original petition[?]” Wurster’s counsel explained what would happen should Wurster’s petition be permitted to proceed: “As far as what the order after trial would look like, I presume it would look something like this: It would present evidence that Mr. Middleton had, in fact, been acting as power of attorney, and that he has not actually … produced a real accounting of his actions, and the Court would compel it.” Wurster’s counsel continued: “Furthermore, they spell out the game plan in their reply brief … and in [their] argument today, if we bring an objection to their new petition, well, you don’t have standing to do it and so we’re gonna fight you on standing. We’ll have a standing fight before we even get to the discovery process I assume.” Counsel noted: “And essentially I think what they’re arguing is only Ms. Sherin, represented by Wilson & Darling, has standing to contest the petition brought by Mr. Middleton as power of attorney also brought by Wilson & Darling. The conflict is clear.” Wurster’s counsel emphasized: “And its just a proliferation of games that are preventing us from determining really the facts of this case, which is what we’ve been driving at the whole time.” Counsel observed: “We’ve got an 80-year old woman. She had two properties; a residence and a business property she owned with her husband who passed away a few years ago. [¶] Shortly after his death those properties were commingled with the power of attorney. Why? What other property has been commingled?” Counsel stated that he had deposed Sherin the day before and “she 18. testified that she was a sole owner of this furniture and refinishing business. Who’s really running it? What’s happening with the assets? That’s what we’re trying to determine.” Counsel added: “And trying to shoehorn us into a new process is going to prevent everyone from realizing and determining what’s actually happening with this woman’s finances.” After hearing the parties’ arguments, the probate court stated: “[T]he matter before the [c]ourt this morning is the motion to dismiss. [¶] And I am not convinced that the [c]ourt should grant that motion at this stage of the proceeding, and so I’m going to deny the motion to dismiss at this time without prejudice for it to be resubmitted to be reconsidered and it can be filed as a new separate motion.” The court added: “I’m not worried about it being writted or appealed. You’re certainly free to do that, but if another motion is brought, the [c]ourt will take it up at that time.”

D. Analysis Under section 4543, “[t]he court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the principal or the principal’s estate.” Sherin argues the probate court abused its discretion in declining to dismiss, pursuant to section 4543, Wurster’s petition to compel accounting by attorney in fact. Sherin contends: “[Wurster’s] [p]etition seeks an order compelling Middleton to account. He has filed his accounting. The court cannot render effectual relief on this [p]etition. The best outcome for Wurster at trial is to obtain an order to file the accounting that Middleton already filed. It is moot. As such, its continued prosecution cannot ‘protect’ Sherin’s interests.” Sherin’s contentions are not persuasive. Wurster’s petition raised questions about Middleton’s role as attorney in fact, by pointing out that Middleton had acquired an interest in Sherin’s residence and that he was taking an active role with respect to her 19. business assets, without transparency. While Wurster asserted that scrutiny of Middleton’s role in Sherin’s affairs was warranted, Sherin and Middleton disputed Wurster’s characterization of Middleton’s role with respect to the residence and business assets. Here, as Wurster’s counsel explained at the hearing on the motion to dismiss, the probate court had authorized Wurster to obtain discovery relevant to the dispute about Middleton’s role in Sherin’s affairs. Indeed, this court subsequently upheld the probate court’s discovery order except as to disclosure of Sherin’s Social Security number. The disputed issues encompassed by Wurster’s petition cannot be said to be moot at this stage, when it appears the discovery process has stalled, and no evidentiary hearing has occurred. For example, Middleton’s role with respect to his acquisition of an interest in Sherin’s residence remains unclear. (See Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425, 427 [probate court’s dismissal of petition implicating disputed issues, “without an evidentiary hearing or completion of discovery,” was reversible error, as court was required to “consider competent evidence on the contested issue”].) In short, Wurster’s petition was not rendered moot by the accounting filed by Middleton. Indeed, it may well have been appropriate for the probate court to have stayed Middleton’s petition to approve accounting pending the disposition of Wurster’s petition to compel accounting, given that the discovery process was underway on Wurster’s claims.13 On another note, by filing what he characterizes as a complete accounting and arguing that Wurster was effectively in receipt of it (albeit via the device of judicial notice), Middleton may potentially have waived any objection to Wurster’s entitlement to receive an accounting from him pursuant to section 4541, subdivision 13 We simply mention but do not decide this point.

20. (c).14 Alternatively, the question arises whether Wurster was actually in receipt of the so- called accounting for all purposes, in the first place. We conclude the probate court did not abuse its discretion in denying Sherin’s motion to dismiss Wurster’s petition. Accordingly, we affirm the court’s order.15 DISPOSITION The probate court’s order denying Sherin’s motion to dismiss Wurster’s petition to compel accounting is affirmed. Wurster is entitled to her costs on appeal.

FRANSON, Acting P. J. WE CONCUR:

DE SANTOS, J.

HARRELL, J.

14 We do not decide this issue. 15 Our disposition makes it unnecessary to address other arguments in favor of affirmance raised by Wurster. For purposes of our analysis, we assume without deciding that Sherin could properly bring a motion to dismiss pursuant to section 4543.

21.