Opinion
C098739
04-09-2024
Conservatorship of the Person and Estate of A.S. v. A.S., Defendant and Appellant. MONO COUNTY PUBLIC GUARDIAN, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. PR202011
Duarte, Acting P. J.
After a bench trial, the trial court found appellant A.S. to be gravely disabled within the meaning of the Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq.). The court reappointed the Mono County Public Guardian (Public Guardian) as A.S.'s conservator for a one-year period ending on May 17, 2024. A.S. challenges the denial of his motion to dismiss the petition to reappoint the conservator on the basis of inadequate notice. Seeing no prejudice, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2020, the Mono County Director of Behavioral Health was appointed conservator of the person and estate of A.S. for a six-month period ending June 10, 2021, and was successively reappointed for six-month periods ending May 4, 2022, October 21, 2022, and May 17, 2023.
On February 7, 2023, Mono County created the Office of the Public Guardian to serve as conservator in all conservatorship cases, and, on April 4, 2023, per the parties' stipulated petition, the trial court ordered the Public Guardian substituted for the Director of Behavioral Health as the conservator for A.S.
At a hearing held on April 6, 2023, county counsel stated the Public Guardian intended to extend A.S.'s conservatorship, which was expiring soon. Counsel for A.S. indicated that A.S. would waive a jury trial on renewal of the conservatorship. The matter was set for a court trial on May 10, 2023.
At a hearing held on April 13, 2023, the trial court advised that he had "a right to a jury trial on the hearing to determine . . . whether or not the conservatorship . . . should be extended or renewed." At that hearing, A.S. personally and expressly waived his right to a jury trial in favor of a court trial on the petition to renew the conservatorship. The trial court noted the petition to renew the conservatorship had yet to be filed. County counsel stated that the petition would be filed prior to trial, adding, "we are set and prepared for the bench trial on May 10th."
On May 3, 2023, the Public Guardian filed: (1) a written citation for conservatorship (Welf. & Inst. Code, § 5350; Prob. Code, § 1823) requiring A.S. to appear at a hearing on May 10, 2023; (2) a notice of the hearing on May 10, 2023, on the petition for reappointment; and (3) the petition for reappointment itself.
On May 5, 2023, the Public Guardian filed the confidential medical opinions of Dr. Heather O'Connell, a psychologist with five years of postgraduate experience, and physician Dr. Gurpreet Dhurgga, both recommending conservatorship for A.S. Dr. O'Connell opined that A.S. is gravely disabled due to a mental disorder (undifferentiated schizophrenia) and is unwilling and incapable of accepting treatment voluntarily and unable to provide for his basic needs. Dr. O'Connell recommended conservatorship, because "A.S. has psychotic symptoms that persist despite treatment w/ psychotropic medication. He intends to discontinue his medication and return to using illicit drugs, both [of] which will contribute to decompensation. He cannot formulate a realistic plan to meet his basic needs." Dr. Dhurgga also opined that A.S. was gravely disabled as a result of unspecified schizophrenia and incapable of accepting treatment voluntarily and providing for his basic needs. Dr. Dhurgga recommended conservatorship because "[p]atient has poor insight, delusional thought process & poor judgment."
On May 9, 2023, the Public Guardian filed an amended opinion from Dr. O'Connell correcting a clerical error.
On May 10, 2023, A.S. filed a motion to dismiss the petition for reappointment. A.S. contended the petition was defective because, in his view, section 5361, subdivision (b) requires the recommendations of two psychologists or physicians, both of whom must verify they have five years of postgraduate experience. A.S. also contended the petition violated due process by not providing adequate notice, claiming: the petition was not filed 30 days before the termination date of the conservatorship (§ 5350, subd. (c)(1)); the notice of hearing on the petition was not filed 15 days before the hearing (Prob. Code, §§ 1822, 1824); the notice did not include a copy of the petition (id., § 1822, subd. (a)); and the petition served on May 3, 2023, did not include the medical declarations, which were not served until May 5, 2023 (§ 5361, subd. (b)).
On May 10, 2023, per stipulation of the parties, the trial court continued the trial to May 17, 2023. On May 10, 2023, the Public Guardian filed an additional declaration of a psychologist with five years of postgraduate experience recommending conservatorship because A.S. was "resistant to treatment." On May 16, 2023, the Public Guardian filed opposition to A.S.'s motion to dismiss. The Public Guardian argued section 5361 did not provide for a motion to dismiss, which in this instance was functionally a demurrer that failed to comply with the applicable Code of Civil Procedure provisions. The Public Guardian further argued that A.S. had misinterpreted section 5361, subdivision (b), which only requires opining psychologists (and not opining physicians) to have five years of postgraduate experience. Lastly, the Public Guardian contended that granting a motion to dismiss would not promote judicial economy because the Public Guardian could file a claim to reestablish the conservatorship after it expired (§§ 5361, subd. (c), 5363), the facility must continue to hold A.S. until the petition is heard (§ 5361, subd. (c)(1)), and the Public Guardian could also apply ex parte for a temporary conservatorship (Prob. Code, § 2250.2, subd. (e)).
On May 17, 2023, the trial court conducted a hearing on the petition to renew the conservatorship. The court initially addressed the motion to dismiss, stating that its tentative ruling was to deny the motion. The court explained that section 5361 does not require physicians to have five years of experience. With respect to notice, the court's tentative ruling was to deny the motion for the reasons set forth in the Public Guardian's opposition.
The trial court also asked counsel for A.S.: "What about the petitioner's assertion that even if the petition were to be dismissed for lack of proper notice, the petitioner could immediately refile or seek to continue the conservatorship or keep [A.S.] under conservatorship until a new request for a temporary conservatorship could be filed? [¶] In other words, it appears to be a right without a remedy, [counsel]. If I do dismiss the petition on the grounds that it has not been properly served or properly noticed, it appears the petitioner would have options -- other options available to ensure that [A.S.] is conserved. . . . [¶] . . . [¶] . . . So it appears to be a right without a remedy or at least a remedy would seem to be something that in this case the court would not be inclined to grant [on] the motion to dismiss based on the documents submitted by the doctors and Dr. O'Connell, which provide evidence, at least initially, to show that [A.S.] is gravely disabled."
Counsel for A.S. responded that the Public Guardian can delay termination of the conservatorship but only if it acts in good faith, and here there was no reason why the petition or notice of the hearing was late, indicating lack of good faith. Counsel further argued that the notice rules serve the purpose of "mak[ing] sure everyone has time to prepare." However, counsel stated: "I will tell this court I'm ready to go today. I made sure I was ready to go today in case the court did deny my motion. So I'm ready; however, I don't think any of the notice requirements have been met."
The trial court adopted its tentative ruling denying the motion.
The hearing proceeded with Dr. O'Connell testifying in a manner that was consistent with her declaration. She was cross-examined extensively by counsel for A.S. Robin Roberts, Director of Behavioral Health and A.S.'s former conservator, also testified to her belief that A.S. continued to be gravely disabled, and Roberts was briefly cross-examined by A.S.'s counsel.
The trial court found A.S. gravely disabled beyond a reasonable doubt and A.S.'s current level of care and placement appropriate. The written order stated: "The court finds that all notices of the time and place of hearing have been given as required by law, that all the facts alleged in the petition are true, that the conservatee continues to be gravely disabled beyond a reasonable doubt as a result of a mental disorder, and that no suitable alternative to conservatorship is available." The court granted the petition and reappointed the Public Guardian conservator of the person and estate of A.S. until May 17, 2024.
A.S. filed a timely notice of appeal. The case was fully briefed on February 6, 2024, and assigned to this panel shortly thereafter.
Respondent claims trial counsel for A.S. had been relieved by the time he filed the notice of appeal and thus "lacked any legal authority" to file it, adding without citation to the record that A.S. himself "did not request this appeal." We disregard this claim for lack of citation to any legal authority as well as inadequate support from citation to the record. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.)
DISCUSSION
A.S. contends on appeal that the trial court's order granting the petition to renew his conservatorship should be reversed because of "the inadequate and late filed [sic] notices . . . ." He does not challenge the trial court's finding that he is gravely disabled. As we next explain, A.S cannot show prejudice stemmed from any lack of notice; thus, his claim of error fails.
An LPS conservatorship automatically terminates one year after appointment by the superior court. (§ 5361, subd. (a).) If the conservator concludes that the conservatorship is still required, the conservator may petition for reappointment for a one-year period. (Id., subd. (b).) The petition must be filed and transmitted to the facility where the conservatee is placed at least 30 days before the automatic termination date. (Id., subd. (c)(1).) In addition, notice of the hearing on the petition, accompanied by a copy of the petition, must be served on the conservatee and others specified by statute at least 15 days before the hearing. (Prob. Code, § 1822; see also id., § 1824.)
Absent a statutory conflict, the same procedure used to establish conservatorships under the Probate Code applies to LPS conservatorships. (Conservatorship of John L. (2010) 48 Cal.4th 131, 146-147.) Further, under Probate Code section 1827, "the laws of civil procedure apply in LPS conservatorships." (John L., at p. 147.)
As relevant to the claims on appeal here, section 5362, subdivision (a) provides in relevant part: "The clerk of the superior court shall notify each conservator, his or her conservatee and the person in charge of the facility in which the person resides, and the conservatee's attorney, at least 60 days before the termination of the one-year period." The text of the notification should include in substantial form the statement that "[i]f any of [those notified] request it, there shall be a court hearing or a jury trial, whichever is requested, on the issue of whether the conservatee is still gravely disabled and in need of a conservatorship." (§ 5362, subd. (a); see also § 5350, subd. (d)(1) ["The person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue of whether the person is gravely disabled"]; Prob. Code, § 1828, subd. (a)(6) [the court must inform the proposed conservatee of "the right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if not otherwise represented by legal counsel"].)
Based on our review of the record on appeal, it appears that few if any of these deadlines were met, an observation with which respondent's briefing does not disagree. However, this observation does not end our analysis.
The fundamental right protected by the notice statutes is a conservatee's right to a jury trial on the petition for reappointment. (See Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030 (Benvenuto).) As we have set forth above, here the court advised A.S that he had a right to a jury determination on the petition more than a month before the hearing on the petition was held, and A.S. personally waived his right to a jury trial at that hearing. At the later hearing on the petition, counsel for A.S. explicitly stated he was prepared to proceed notwithstanding the trial court's and the Public Guardian's acknowledged failure to meet notice requirements, thereby waiving A.S.'s claim of inadequate notice.
In Benvenuto, this court held that failure to give the 60-day notification required by section 5362, coupled with the lack of any indication that the conservatee was orally advised of his right to a jury trial, required that the order reappointing the conservator be reversed. (Benvenuto, supra, 180 Cal.App.3d at pp. 1037-1039.) We noted that Probate Code section 1828 also required the trial court to advise a conservatee of the right to jury trial, including in proceedings to reestablish a conservatorship. We said: "The reason for the requirement of these formal advisements of the right to jury trial on the record is to safeguard against the loss of the fundamental right to jury trial whether by inadvertence, neglect, or paternalism. In this case no written notice of the right to jury trial required by section 5362 was given. We do not view this error as harmless on the ground it was cured by the appointment of counsel for Benvenuto. There is no indication in the record that Benvenuto was orally advised by the trial court of his right to demand a trial by jury. This compounds the antecedent error. We hold that failure to inform Benvenuto of his right to jury trial requires that the order granting the petition be overturned." (Benvenuto, at p. 1039.)
Nothing in the record before us suggests the court clerk sent the 60-day notice here. However, the trial court advised A.S. of his right to a jury trial and A.S. personally waived jury trial in open court at a hearing explicitly set for that purpose and held over a month before the hearing on the petition. Thus, we conclude that, unlike the circumstances in Benvenuto, noncompliance with section 5362 or Probate Code section 1828 was harmless error. (Benvenuto, supra, 180 Cal.App.3d at p. 1038.)
Turning to the 30-day and 15-day service and notice provisions of section 5361, subdivision (c)(1) and Probate Code sections 1822, subdivision (a) and 1824, we conclude that A.S. waived a challenge on appeal to noncompliance with these provisions when his counsel informed the trial court that he was prepared to contest the petition on the merits and did so. We apply the well-settled rule in civil proceedings that "one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of notice, it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him [citation], to one who responds to a notice of motion without adequate notice [citation]." (De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8 [" 'a party who appears and contests a motion in the court below cannot object on appeal . . . that he had no notice of the motion or that the notice was insufficient or defective' "]; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 9:88 ["To preserve the issue for appeal, the opposing party should expressly object to the defective notice in its opposition papers, request a continuance and demonstrate prejudice from the defective notice"].) The rule is particularly applicable here, where counsel for A.S. declared before the trial court issued a final ruling on the motion to dismiss that he was fully prepared to contest the petition on the merits and did so in a bench trial proceeding where witnesses were examined and cross-examined. The reporter's transcript runs to more than 70 pages after the trial court denied the motion to dismiss. (See Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 967 [conservatee waived trial court's error in misinterpreting a request for a hearing as a request for court trial, because conservatee failed to object "and participated in that trial through its ultimate conclusion"].)
Moreover, A.S. does not challenge the trial court's finding that he is gravely disabled or suggest that he would have been better prepared for trial or more successful in opposing the petition had he received the required notice. For that reason as well, A.S. cannot show prejudice. (Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 919; Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532-533.)
A.S. cites two cases from this court, People v. Bailie (2006) 144 Cal.App.4th 841 and People v. Alvas (1990) 221 Cal.App.3d 1459 where, according to A.S., "[i]n involuntary commitment proceedings, courts have reversed without any discussion of prejudice of [sic] harmless error." Based on these cases, A.S. contends the failure to strictly comply with LPS time requirements and the trial court's statement in its written order that time requirements were observed "undermines the integrity of the commitment order and as such is structural error." However, those cases include neither discussion nor any mention of harmless or structural error. It is axiomatic that "[c]ases are not authority for propositions not considered." (People v. Dutra (2006) 145 Cal.App.4th 1359, 1368; Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 440.) A.S. has not cited any authority concluding that failure to comply with statutory notice and time of filing requirements in LPS proceedings constitutes structural error. To the contrary,"' "[a] strong presumption" exists against finding that an error falls in the structural category, and "it will be the rare case" where an error-even "a constitutional violation"-"will not be subject to harmless error analysis." '" (Conservatorship of C.O., supra, 71 Cal.App.5th at p. 918.) We see no reason to disturb the judgment here.
In citing these cases, A.S. fails to disclose that both were disapproved by People v. Barrett (2012) 54 Cal.4th 1081, in which our Supreme Court rejected the analysis in Bailie and Alvas holding that constitutional due process or equal protection requires a trial court to advise the defendant of the right to a jury and the defendant to personally waive that right. (Barrett, at pp. 1105-1106, 1109.)
Given our disposition of this case, we need not and do not address the Public Guardian's contentions that: (1) the motion to dismiss was untimely; (2) the motion to dismiss was functionally a demurrer but failed to comply with the procedural requirements for a demurrer; and (3) there was good cause for delay in filing and serving the petition for reappointment.
DISPOSITION
The judgment is affirmed.
We concur:Renner, J., Boulware Eurie, J.