Opinion
A154819
09-24-2019
Conservatorship of the Person and Estate of B.S. A.P.S., Petitioner and Appellant, v. R.C., as Conservator, etc., Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSP1600887)
A.P.S. (Father) and R.C. (Mother) are the parents of an adult developmentally disabled son who requires significant ongoing care. The parents are embroiled in a dispute over which of them should serve as limited conservator for their son, which in turn reflects their differing views of what form of treatment and what living situation is best for him. Mother is currently the limited conservator and has acted in that capacity since June 2016. Father's primary complaint is that Mother has not followed medical recommendations from doctors at UCSF Medical Center (UCSF) and, over a considerable period of time, has treated their son with cannabis instead. In October 2017, Father filed a petition to remove Mother as limited conservator and a petition to be appointed himself as successor limited conservator. In May 2018, Father's petitions were denied and Mother was retained as limited conservator of the person and estate of their son. Father now appeals.
A "limited conservatorship" is one established for a developmentally disabled adult, in which the powers of the conservator must be spelled out by the court. (See Prob. Code, §§ 1801, subd. (d), 1828.5, subd. (e), 2351.5, subd. (b).)
We find Father has established grounds for reversal based on the trial court's exclusion of significant relevant medical and other evidence in the May 2018 trial in response to two motions in limine filed by Mother. Because we conclude there is a reasonable probability that consideration of the excluded evidence could lead to a different result, we remand the cause for retrial on Father's petitions.
I. BACKGROUND
Father and Mother were once married and had a son, B.S., who, though normal at birth and throughout his childhood, developed psychiatric problems and developmental delays in his early teens that have affected his intellectual development, rendering him disabled and in need of a limited conservator, as both parties acknowledge. B.S.'s symptoms include becoming hostile and even violent at times, especially with Mother. Father and Mother divorced some 15 years ago in Solano County, where Mother lives. Father lives in Contra Costa County. The couple shared custody of B.S. equally through his teen years up until his 18th birthday, apparently without acrimony, but things changed when he became an adult.
B.S.'s diagnosis has varied from doctor to doctor and time to time, including vague descriptors such as functional impairment, cognitive delay, and intellectual disability, as well as more ominous sounding diagnoses of autism spectrum disorder, schizoaffective disorder, bipolar disorder, attention deficit disorder, psychosis (not otherwise specified), impulse control disorder, cognitive disorder, degenerative brain disorder, and early onset schizophrenia, with one expert estimating his intellectual functioning as that of a five-year-old. Father at one time believed B.S.'s disability might be related to Lyme Disease. Doctors have suggested the symptoms could be due to an infectious process or to a genetic problem. B.S. has been treated with lithium, Risperdal, Ativan, Zyprexa and cannabis.
Shortly after B.S. turned 18, in June 2016, Mother, represented by attorney Konstantine Demiris, filed in Contra Costa County an ex parte petition to become B.S.'s temporary limited conservator, along with a petition to become his limited conservator on an ongoing basis. (Prob. Code, §§ 1820, subd. (a)(3), 1821, 2250.) Mother alleged, as the reason for proceeding ex parte—with no notice to Father—that Father was planning within a matter of days to take B.S. to India permanently, against Mother's and B.S.'s wishes, and contrary to the best interests of B.S. She alleged B.S. was receiving specialized care from UCSF and no commensurate level of care was available in India. The petition for temporary conservatorship was granted with a termination date of March 17, 2017 (see Prob. Code, §§ 2251, 2257, subd. (b)), and a hearing on the petition for ongoing conservatorship was set for August 24, 2016. An attorney, Matthew Toth, was appointed to represent B.S.
Though Mother put forward B.S.'s need for the high level of care he received at UCSF as a basis for needing ex parte relief, Father points out that soon after being appointed temporary limited conservator, Mother took B.S. out of the care of UCSF and instead began taking him to see a psychiatrist in Walnut Creek, Dr. Mansoor Zuberi.
Before the scheduled hearing, Father, acting pro se, filed a written objection to the appointment of Mother as conservator. (Prob. Code, §§ 1020, 1043, 1829.) Attached as exhibits were letters from two psychiatrists, a psychologist, and four family friends, all of whom attested to Father's meticulous care for B.S. and the improvement in B.S.'s medical condition under Father's care. On August 17, 2016, a court investigator, Corey Ordonez, signed a report recommending that Mother's petition be granted, but Ordonez anticipated that Mother would file an amended petition requesting that both parents be appointed co-conservators, as that was their mutual desire when he interviewed them. (See Prob. Code, §§ 1419, 1454, 1826, 1851, 2250.6.) Included in Ordonez's report was a statement by Father denying that he wanted to relocate B.S. to India, and saying he only wanted to take B.S. there for a vacation. B.S.'s attorney (Toth) recommended granting Mother's petition, but he had not spoken to Father before reaching that conclusion. The court continued the matter to October 17, 2016.
On that date Father, still acting pro se, filed a petition to be appointed limited conservator for his son. The court ordered the parties to mediation and continued the matter to December 7, 2016.
According to Father, on November 7, 2016, B.S. became very aggressive with Mother, and the police were called. B.S. was put on a hold under Welfare and Institutions Code section 5150 (section 5150) at the Sutter Solano Medical Center (Sutter Solano) emergency room in Vallejo for three nights. He was later moved to the Sierra Vista Behavioral Center in Sacramento and held there under Welfare and Institutions Code section 5250 until November 22, 2016. Father alleged this was at least the fourth section 5150 commitment for B.S. since Mother had been appointed temporary conservator.
At the continued hearing on December 7, 2016, Father requested regular visitation with B.S. and asked to be allowed to make medical appointments for him. By that time, according to a letter attached to Father's objection to appointment of Mother as conservator, B.S.'s doctor at UCSF was recommending that he be moved to a residential treatment center as the "most likely means by which his long-term recovery can be maximized." A trial was set for both parties' petitions for January 27, 2017.
Around this time, according to Father, Mother stopped taking B.S. to UCSF for treatment and stopped giving him the prescribed medications. She explained that she did not like taking him to doctors' appointments because he might act out in the doctor's office. Father accuses her of ignoring B.S.'s best interests.
A few days before the trial in January, Father filed an amended request for visitation, a request for joint conservatorship, and a request to make medical appointments for B.S. Specifically, Father requested the court's permission "to place him in a long term residential treatment facility of at least 4-6 months in the short term, and in the long term allow [Father] to schedule and transport him to the doctor office for his regular medical appointments."
Although we have no transcript of the trial, it went forward on January 27, 2017, and at its conclusion, Judge John Sugiyama granted Mother's petition, giving her the rights, inter alia, to fix B.S.'s place of residence and to give or withhold medical consent. (See Prob. Code, § 2351.5, subd. (b)(1) & (b)(5).) Judge Sugiyama set a hearing on Father's request for visitation for March 2017. He set Father's petition to be appointed conservator for trial on April 7, 2017.
On March 8, 2017, judgment was entered on the January 27 orders, and the next day, letters of limited conservatorship issued to Mother. Also on March 9, Father substituted in an attorney, Nathan Pastor, to represent him.
At the March hearing on visitation, Mother continued to assert that Father intended to take B.S. to India. B.S.'s attorney Toth told the judge he had requested B.S.'s passport from Father, but it had not been turned over. The judge ordered Father to have no visitation until the passport was turned over and ordered the parties to meet and confer regarding visitation.
Two days before the scheduled April 7 trial, Pastor filed a status report saying Father would not appear. The matter was held in abeyance. In May 2017, Father again began representing himself, but took no further action for several months.
On October 2, 2017, Father substituted in new counsel, Terence Murphy. On the same date, Father filed a petition to remove Mother as limited conservator and a subsequent petition to be appointed successor limited conservator for B.S., which were opposed by Mother. At the hearing on October 30, 2017, Father said he was seeking to become conservator so he could get B.S. enrolled in a long-term care treatment program, instead of taking him to the emergency room or calling the police when problems arose, as Mother had been doing. The court appointed Mother and Father as co-conservators temporarily, instructed Father to investigate the eligibility requirements for the long-term care program, and set a hearing for December 11, 2017.
Father also filed a petition to suspend Mother's powers as conservator and an ex parte petition to be appointed temporary conservator, which were denied in December 2017.
In November 2017, B.S. was again placed on a section 5150 hold at Fremont Hospital. On that occasion he punched Mother, broke an air conditioning unit in their home, and destroyed some window treatments. B.S. again had cannabis in his system and was diagnosed with cannabis abuse disorder.
In a report signed December 7, 2017, the court's investigator Ordonez concluded: "It appears that both parents care about the conservatee, however, it is apparent to this investigator that [Father's] thoroughness and dedication would make him the preferred person to deal with the conservatee's medical affairs. [Mother] has been less than forthcoming with information and has not been responsive to this investigator. It appears that her lack of responsiveness is not isolated to her interactions with the Court; [Mother] also apparently fails to follow up with medical professionals as well. [Father], however, has been very responsive and appears to have plans to stabilize the conservatee so that he can be placed in a care facility." This report was admitted at trial.
A bench trial on Father's petitions began on May 9, 2018 before Judge Susanne Fenstermacher. Father argued that Mother should be removed as conservator because she had failed to provide B.S. with appropriate medical and psychological care. (See Prob. Code, §§ 2351.5. subd. (a)(2), 2650, subd. (c).) Specifically, Father alleged (1) Mother had no "long-term plan" for B.S., had not followed the advice of B.S.'s doctors to house him in a long-term care facility, and instead kept him living with her; (2) she was treating B.S. with cannabis, which was contra-indicated for his condition, instead of the drugs recommended by his doctors, to the point that B.S. had developed an addiction to cannabis, and Mother had failed to report to medical professionals that she was giving him cannabis; (3) she called 911 whenever B.S. became uncontrollable, resulting in multiple commitments under section 5150, which Father alleges would not have been necessary if Mother had followed doctors' advice; (4) B.S.'s condition had deteriorated since Mother had become his conservator, including that, starting at a weight of 160 pounds, he had lost nearly 40 pounds in fifteen months; and (5) it would be in B.S.'s best interests to remove Mother as limited conservator and replace her with Father because Father would be a proactive conservator and would follow medical advice in treating B.S. In addition, Father complained that Mother would not allow him to visit with his son except when supervised by her or by Toth.
Mother objected to Father's petitions on grounds that Father did not allege and could not prove a legal basis for removal of Mother as conservator under Probate Code section 2650. Mother again claimed Father intended to take B.S. to India or Thailand, where Father purportedly believed B.S. could be cured and returned to normal functionality. Mother claimed in briefing that Father had tried several unconventional and potentially dangerous "treatments" for B.S., including giving him "electro-shock therapy" at home, subjecting him to chelation therapy to remove heavy metals from his bloodstream, and trying to cure him with nutritional supplements. These allegations appeared in Mother's trial brief, but she was never required to present any evidence at trial, so there is no supporting testimony.
Probate Code section 2650 provides as follows: "A guardian or conservator may be removed for any of the following causes:
(a) Failure to use ordinary care and diligence in the management of the estate.
(b) Failure to file an inventory or an account within the time allowed by law or by court order.
(c) Continued failure to perform duties or incapacity to perform duties suitably.
(d) Conviction of a felony, whether before or after appointment as guardian or conservator.
(e) Gross immorality.
(f) Having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties.
(g) In the case of a guardian of the person or a conservator of the person, acting in violation of any provision of Section 2356.
(h) In the case of a guardian of the estate or a conservator of the estate, insolvency or bankruptcy of the guardian or conservator.
(i) In the case of a conservator appointed by a court in another jurisdiction, removal because that person would not have been appointed in this state despite being eligible to serve under the law of this state.
(j) In any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee; but, in considering the best interests of the ward, if the guardian was nominated under Section 1500 or 1501, the court shall take that fact into consideration."
Mother also argued that Father had no specific care plan in mind for B.S., and claimed she was already acting in B.S.'s best interests. Mother did not deny giving B.S. cannabis but said she quit giving it to him when the doctors told her to stop. She hypothesized that Father was only pursuing the conservatorship to retaliate against her for seeking and receiving increased support payments for B.S. Mother also put forth a number of affirmative defenses—collateral estoppel, res judicata, waiver and consent—that boiled down to the theory that Father should be bound by the ruling of the probate court on January 27, 2017, when Judge Sugiyama allowed Mother to serve as the limited conservator on an ongoing basis. Father, Mother argued, should not be allowed to introduce any evidence created prior to that decision.
Attorney Toth filed a trial brief on behalf of B.S. in which he sided with Mother. He had observed Mother's interactions with B.S.; she appeared to take good care of B.S., and he appeared to be happy in her presence. Toth had supervised a recent visit in a park between Father and B.S.; he criticized Father for arriving late, bringing with him two adult male caregivers to assist, and bringing pizza (which was not good for B.S. because he suffers from acid reflux). Toth also noted B.S. was committed under section 5150 the day after the visit, though he had been free of such commitments for a considerable time prior to the visit. Toth acknowledged B.S. was "very happy" to see his father, but implied that the visit may have triggered the section 5150 hold. Tension between the parents made co-conservatorship unworkable. Toth claimed both parents thought B.S. would be better off in a long-term care facility, but neither parent had found a facility that would accept him.
Father called as a witness the court's investigator, Ordonez, who had written statutorily mandated reports on the case in August 2016 and December 2017. (See Prob. Code, §§ 1419, 1454, 1826, 1851, 2250.6.) The statement of decision summarized his testimony as follows: "Mr. Ordonez testified at trial that because [Father] stated he had a care plan that Mr. Ordonez felt [Father] should be appointed conservator. Mr. Ordonez did not testify at trial to any facts that would support a removal of the current conservator, [Mother]. In fact, Mr. Ordonez testified that he had received no calls from [Father] in over six-months and that he had no reports of any negative issues concerning B.S. in over six-months and that he had no reason to believe that B.S. was at risk of harm with the Conservator, [Mother] or that [Mother] should be removed. He simply stated his opinion that he wished both parents to be conservators but if he had to choose he would choose [Father]." It is not clear whether Ordonez was allowed to support with reasons his earlier expressed opinion that Father would be a better conservator than Mother. His August 2016 written report was excluded from evidence as hearsay and because it was created before January 27, 2017.
Besides Dr. Elizondo as an expert witness, whose testimony was not summarized in the statement of decision, Father also called Anabel Cramton, a licensed clinical social worker at Sutter Solano, where B.S. tested positive for cannabis in screening results in August, September and November 2016, and on February 21, 2017. Beyond perhaps testifying that B.S. tested positive for cannabis in February 2017, the substance of her testimony is unknown. She had previously written summaries of B.S.'s emergency room visits at Sutter Solano, and the February 2017 notes were admitted at trial as Exhibit 6. Exhibit 6 included observations by Cramton that Father was more knowledgeable about B.S.'s prescribed medications than Mother was, that he was more responsive to Cramton's attempts to make contact, was generally more interested in B.S.'s hospitalization, and she quoted Mother as saying she was "tired and burned out" from having to take care of B.S.; she was looking to Father for help in caring for him, or was interested in finding a residential placement for him.
Another witness was a friend and neighbor of Father's, Sunil Ajmani, who was on the stand only momentarily. Father himself also testified and was cross-examined by Demiris and Toth, but his testimony is not recited in the statement of decision, nor is Ajmani's. Father testified his primary reason for seeking a change in conservators was to establish a care plan for B.S. Three other non-expert witnesses were designated by Father but did not testify.
At the conclusion of Father's case, attorney Demiris moved for judgment as a matter of law on behalf of Mother. (Code Civ. Proc., § 631.8.) The court granted the motion and denied Father's removal petition. Mother presented no evidence. Having denied the removal petition, the court also denied Father's petition for appointment of a successor conservator. Father timely appealed.
The statute authorizing appointment of a successor conservator reads: "When for any reason a vacancy occurs in the office of conservator, the court may appoint a successor conservator in the manner provided in this article." (Prob. Code, § 2680, italics added.)
II. DISCUSSION
A. The Trial Court's Ruling
The court granted Mother's motion for judgment as a matter of law because Father had testified that he wanted to replace Mother as conservator because he wanted to establish a long-term care plan for B.S. The court ruled that establishing a care plan was not a statutory basis for removing a conservator under Probate Code section 2650 and in any event Father did not have a care plan arranged. That is too literal a reading of the statute. Father's desire to achieve a "care plan" for B.S. was directly and overtly linked to his claim that Mother was failing to perform her duties as conservator, which is a basis for removal under Probate Code section 2650, subdivision (c). (See fn. 5, ante.) The quibble seems to be semantic.
Also, the observation that Father did not have a care plan arranged for B.S. would seem to be irrelevant to the question whether Mother was properly performing her duties. It seems improper to deny a petition for removal of a conservator based on the failure of the objector to do the conservator's job for her. Father should have been required only to show serious deficiencies in Mother's performance of her duties. His own performance would be relevant only to his petition for appointment as conservator.
Bearing these misgivings in mind, we turn to Father's arguments for reversal.
B. Issues Raised on Appeal
Father contends the initial conservatorship petition filed by Mother was filed in an improper venue, and the court erred in granting Mother's application ex parte. He further claims, in the trial in May 2008, the court erred by finding Father failed to plead and prove statutory grounds for removal of Mother, by excluding certain of Father's evidence based on Mother's motions in limine, by failing to consider on the merits Father's competing petition for appointment as successor limited conservator, and finally, he claims the court prejudged the case and demonstrated bias in favor of Mother. He contends he was deprived of due process by the handling of his petitions.
C. Sufficiency of the Record on Appeal
The record in this case consists of two volumes of clerk's transcripts totaling 550 pages and a 12-page reporter's transcript of a hearing at which the matter was simply continued for a trial setting date. We have no verbatim record of either the 2017 trial or the 2018 trial, as a court reporter was not present for either proceeding.
We do have, however, a written record of several matters pertinent to the issues on appeal. Mother filed three written motions in limine seeking to restrict matters allowed into evidence at the 2018 trial. Specifically, she sought to exclude (1) evidence predating January 27, 2017 on grounds of collateral estoppel and res judicata, (2) two written reports of the court's investigator on hearsay grounds, and (3) she asked to limit the testimony of Father's expert medical witness along the lines spelled out in Sanchez, supra, 63 Cal.4th 665. Father filed opposing memoranda arguing the evidence was admissible in response to the first two motions in limine, but not motion in limine no. 3.
In response to Mother's motion in limine no. 2, the court held the written reports of investigator Ordonez filed August 29, 2016 and December 12, 2017 were not admissible under the hearsay rule. In fact, however, the trial court excluded the August 2016 report but admitted the December 2017 report, which suggests it was not the hearsay that kept the August 2016 report out of evidence, but the date on which it was created. (Cf. J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 533 [social worker's report admissible in dependency proceeding even after People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez)]; Welf. & Inst. Code, §§ 281, 355, subd. (b) [social study prepared by social worker is admissible in dependency cases], 5354 [under Lanterman-Petris-Short (LPS) Act, "[t]he court may receive the [court investigator's] report in evidence and may read and consider the contents thereof in rendering its judgment"].)
The motions in limine were decided orally at the beginning of Father's presentation of evidence. At Father's request, the court issued a written statement of decision in which the in limine rulings were discussed. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590(c).) The statement of decision was authored by Demiris, signed by Judge Fenstermacher, and filed on June 22, 2018. Father, once again acting pro se, filed objections to the statement of decision, so we know in what particulars Father disagrees with it.
Several of Father's issues on appeal turn on whether the court ruled correctly on Mother's motions in limine. Even on the scant record presented, we find sufficient evidence to allow review of the court's rulings on Mother's first and third motions in limine raised as error by Father (see Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933-934), and we find those issues dispositive.
D. Standards of Review
Whether sufficient cause exists to remove a conservator is a question of fact to be determined in the broad discretion of the trial court, whose determination will not be disturbed except for an abuse of that discretion. (See, e.g., Guardianship of Davis (1967) 253 Cal.App.2d 754, 761; Estate of Howard (1955) 133 Cal.App.2d 535, 539.) Ordinarily, admissibility of evidence, including when raised by motion in limine, is also reviewed for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197; Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.)
Here, however, the trial court's rulings on the evidentiary issues raised by Mother's motions in limine were not entirely discretionary in nature. Admissibility turned on questions of claim and issue preclusion (traditionally referred to as res judicata and collateral estoppel, respectively), as well as the scope of the relatively recent Sanchez hearsay limitation on expert testimony. (Sanchez, supra, 63 Cal.4th at p. 686.) These underlying determinations were legal in nature and must be reviewed de novo. (Children's Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277; see People v. Mickey (1991) 54 Cal.3d 612, 654 [underlying issues scrutinized de novo when they raise questions of law]; People v. Rowland (1992) 4 Cal.4th 238, 266 [applicability of Kelly-Frye rule "examined independently"]; Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921 ["where a question of statutory construction is presented in the course of the review of a discretionary decision, such issues are legal matters subject to de novo review"]; People v. Nelson (2010) 190 Cal.App.4th 1453, 1466 [whether statement is testimonial reviewed de novo].) Whether claim or issue preclusion applies is a question of law that requires de novo review. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 484; City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 228.) Any issue of statutory construction is also reviewed de novo. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529.)
People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013, 1014.
E. Motion In Limine No. 1: Exclusion of Evidence Predating January 27, 2017
1. General Principles Relating to Claim and Issue Preclusion
Mother's motion in limine no. 1 requested the court "to exclude all documents from production at trial that originate prior to the adjudication of the need for the general conservatorship in the above-referenced matter, and the corresponding appointment of [Mother] as Conservator, heard and decided upon by this court on January 27, 2017" on grounds that it was barred by principles of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Those doctrines preclude parties from relitigating an issue that has been finally determined by a court of competent jurisdiction, or in the case of identical causes of action, issues that might have been litigated but were not. (Guerrero v. Department of Corrections & Rehabilitation (2018) 28 Cal.App.5th 1091, 1098 (Guerrero).)
Another statute potentially in play is Probate Code section 2103, not mentioned by either party. That section provides in part: "When a judgment or order made pursuant to this division becomes final, it releases the guardian or conservator and the sureties from all claims of the ward or conservatee and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order." (Prob. Code, § 2103, subd. (a).) Mother's medical decisions on B.S.'s behalf were not "directly authorized, approved, or confirmed" by the court in the January 2017 order.
"Claim preclusion prevents relitigation of entire causes of action. [Citations.] Claim preclusion applies only when 'a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.' [Citation.] Issue preclusion, by contrast, prevents 'relitigation of previously decided issues,' rather than causes of action as a whole. [Citation.] It applies only '(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.' " (Samara v. Matar (2018) 5 Cal.5th 322, 326-327, italics added.) A key difference between these two species of res judicata is that, while issue preclusion bars evidence only of issues that were actually litigated, claim preclusion prohibits the introduction of evidence on issues that were actually litigated or could have been litigated in the prior proceeding. (Guerrero, supra, 28 Cal.App.5th at p. 1098.)
The statement of decision spoke in terms that suggest the judge ruled on the basis of claim preclusion rather than issue preclusion. It noted, "All evidence originating prior to that date [i.e., January 27, 2017] was available to both parties at the time that judgment was entered." (Italics added.) This suggests the judge believed if evidence was "available" to litigate a particular issue at the January 2017 trial, relitigation of that issue was precluded at the May 2018 trial. That scope of exclusion is required, as a matter of law, only by claim preclusion; issue preclusion applies only to issues that were actually litigated, not all those that could have been litigated. (Guerrero, supra, 28 Cal.App.5th at p. 1098.)
Also, issue preclusion may only be applied if due process requirements are satisfied, which requires an analysis of whether the party against whom the doctrine is asserted had a fair opportunity to pursue his or her claim the first time around. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 404.) Father points out, with some force, that he has never had an opportunity to present the evidence on his superior qualification to be B.S.'s conservator. He contends it was a denial of due process for Judge Sugiyama to proceed to appoint Mother as limited conservator without first holding an evidentiary hearing on his competing petition. Though we find it unnecessary to address that issue directly, we acknowledge being somewhat concerned with the procedure used in this case.
Whatever the merits of that argument, Father forfeited the issue when he failed to appeal the court's issuance to Mother of letters of conservatorship in March 2017. (Prob. Code, § 1301, subd. (a).)
2. The Trial Court's Ruling on Motion in Limine No. 1
The statement of decision summarized the court's ruling as follows: "[T]he Court finds that all evidence originating prior to the January 27, 2017 hearing and determination of need for the general appointment of the limited conservator of the person and estate of B.S. is precluded from evidence under the doctrine of collateral estoppel and res judicata. The issues of conservatorship were previously heard by the court, determined on the merits, and litigated to their conclusion during the hearings on [Mother] and [Father's] competing conservatorship petitions on January 27, 2017. All evidence originating prior to that date was available to both parties at the time that judgment was entered. Therefore, the parties were precluded from presenting documents, testimony, or records pre-dating the January 27, 2017 hearing in the above-mentioned matter at trial." (Italics added.)
The court did not identify specific documents or topics of questioning that were off limits, but the in limine motion itself defined the scope of its request broadly, suggesting that all of the following documents should be excluded: the court investigator's report filed August 29, 2016; correspondence and notes of Anabel Cramton dated November 10, 2016; testimony from expert witness Dr. Elizondo regarding B.S.'s medical history pre-dating January 27, 2017; testimony from non-expert witnesses regarding B.S. pre-dating January 27, 2017. In addition, Mother urged the trial court to "order that no records from any source, including, but not limited to, any and all medical records originating prior to January 27, 2017, be produced at trial and that such should be precluded from evidence . . . ."
Exactly how the court's ruling was implemented at trial on a question-by-question or document-by-document basis is not a matter of record on appeal due to the lack of a reporter's transcript. Nevertheless, the court's written statement of its ruling is sufficient for us to find that, at least as to scope, it improperly granted motion in limine no. 1. The probate court here treated the claim of res judicata as barring "all evidence" predating the date of the earlier disposition, holding "the parties were precluded from presenting documents, testimony, or records pre-dating the January 27, 2017 hearing", regardless of the issues as to which that evidence might be relevant. This was error and goes beyond what is required by principles of claim and issue preclusion.
The common law doctrines of res judicata and collateral estoppel do not purport to exclude all evidence created before the date of the earlier disposition. Rather, they preclude the relitigation of causes of action already finally determined and forbid the relitigation of issues previously decided, actually and necessarily. Rules of claim and issue preclusion are not fundamentally rules of evidence; they are "designed to insure finality of judgments and prevent multiple vexatious litigation and waste of judicial resources." (People v. Wilson (1985) 169 Cal.App.3d 1149, 1158.) And of course, the doctrines are meant to prevent the possibility of conflicting rulings in separate proceedings involving the same issues. (Murphy v. Murphy, supra, 164 Cal.App.4th at p. 404.) Evidence created before the date of the previous ruling but relevant to an issue not decided in the earlier proceeding may be introduced at a later hearing so long as it is relevant to an issue legitimately in dispute at that hearing.
3. The Two Claims Were Brought in the Same Action, and the Causes of Action Were Not the Same, so Claim Preclusion Does Not Apply
First of all, the doctrine of claim preclusion does not apply because the order to which Mother seeks to give preclusive effect is one in the very same action, not a prior action. In such circumstances, claim preclusion does not apply. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-702; Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 770; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, p. 939 & (2019 Supp.) Judgment § 334, p. 253.) In Phillips, for instance, the court spoke of a motion to compel arbitration that followed resolution of a similar motion in the same action. "The original order denying arbitration was not a judgment in a prior proceeding. '[Claim preclusion] gives conclusive effect to a former judgment only when the former judgment was in a different action; an earlier ruling in the same action cannot be [barred by claim preclusion], although it may be "law of the case" if an appellate court has determined the issue.' " (Phillips, at p. 770.) Where, as here, the issue is one that by its nature is subject to modification based on changed circumstances, it is doubtful that either claim preclusion or issue preclusion could be construed to make a prior appointment of a conservator binding if later challenged. And any presumption favoring Mother by reason of her appointment as temporary conservator is undeserved because she obtained that appointment by means of a statement in an ex parte application that Father challenges as false. (See Prob. Code, § 2103, subd. (b).)
Moreover, the court mistakenly concluded the cause of action asserted in Father's objections filed August 9, 2016 and the petition filed October 17, 2016 were the "same matter" as the causes of action raised by his petitions filed October 2, 2017. Even if that were true, claim preclusion did not apply because the October 2016 petition was never heard and decided on the merits. Under principles of claim preclusion, only orders finally disposing of an issue on the merits are entitled to preclusive effect. (Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276, 288, fn. 15 [dismissal for failure to prosecute not a resolution " ' "on the merits' ' " and therefore not entitled to preclusive effect].)
Father's October 2016 petition for appointment as conservator was set for trial on April 7, 2017, but Pastor then announced Father's intention not to pursue it; the matter was held in abeyance and never resolved by the court. The only matters resolved at the January 27, 2017 trial were Father's objection to Mother's appointment as limited conservator and her appointment as such. So far as our research discloses, there are no specific statutory standards for making that determination other than best interests of the conservatee. (See Prob. Code, §§ 1800, subd. (e), 1812, subds. (a), (b)(3), 1828.5, 1850, subd. (a).)
On the other hand, the issue litigated on May 9 and 10, 2018 was whether Mother should be removed as conservator, which is subject to specific statutory criteria listed in Probate Code section 2650. (See fn. 5, ante.) In effect, that section establishes a presumption that one who has already qualified as a conservator is clothed with a presumption of qualification that must be overcome by the challenger's proof of one of the specific types of disqualifying behavior. As an objector to her petition for appointment as conservator on an ongoing basis, Father had not filed a petition to remove Mother as a temporary conservator. Had he done so, he would have had to meet the requirements of Probate Code section 2650. (Prob. Code, § 2258.) He made no attempt to do so, and the court made no ruling on the requirements of Probate Code section 2650 in January 2017.
Claim preclusion did not apply in these circumstances. For that doctrine to apply, the cause of action previously adjudicated and the cause of action to be adjudicated at the subsequent trial must be " 'the same cause of action.' " (Samara v. Matar, supra, 5 Cal.5th at p. 327; see Guerrero, supra, 28 Cal.App.5th at p. 1098 [" ' "the very same claim" ' "].)
4. The Relative Merits of the Competing Petitions Were Not Actually Litigated in 2017, so Issue Preclusion Does Not Apply
The statement of decision also observed, "The issues of conservatorship were previously heard by the court, determined on the merits, and litigated to their conclusion during the hearings on [Mother] and [Father's] competing conservatorship petitions on January 27, 2017." Father's petition to be appointed conservator, however, was not heard on that date. Judge Sugiyama expressly continued the trial on Father's petition to April 7, 2017, at which time it was abandoned by Father. In the meantime, the court granted Mother's petition to become conservator on an ongoing basis. There never was a head- to-head contest on equal footing to determine whether Mother or Father would be a better conservator for B.S. Therefore, Judge Fenstermacher's recitation of the factual basis for her evidentiary rulings in May 2018 was demonstrably erroneous as to the scope of what was decided in January 2017. Neither issue preclusion nor claim preclusion precludes Father's evidence at the May 2018 trial of Mother's alleged failings as limited conservator, nor of his own qualifications to become limited conservator, nor evidence that he would be a better conservator for B.S., regardless of when that evidence originated.
By limiting the grounds for removal of a conservator to "[c]ontinued failure" to perform duties, the Legislature apparently intended Probate Code section 2650, subdivision (c) to preclude litigation concerning a one-time or fleeting failure to perform. Thus, we conclude the statute requires proof that the conservator failed to perform duties over a meaningful period of time that may include periods predating an earlier ruling on the conservator's capacity to serve.
F. Motion In Limine No. 3: Restrictions on Dr. Elizondo's Testimony
1. Factual Background
At trial in May 2018, Father called Dr. Elizondo as an expert witness to testify about B.S.'s "level of functioning, severity of illness, appropriate psychiatric treatment and community supervision required. Dr. Elizondo will provide an opinion with respect to whether or not appropriate treatment, according to the medical records, was prescribed and administered." Murphy indicated that Elizondo would testify on the basis of B.S.'s "treatment records in outpatient and inpatient settings between January, 2016 to present."
The court qualified Elizondo as an expert "in the area of diagnosis and treatment of autism spectrum disorder and psychosis in children and adolescents, including schizophrenia." But Elizondo was precluded from testifying to any contents of the medical reports he reviewed, and was not allowed to testify to anything prior to January 27, 2017. Father argues the court's limitations on Elizondo's testimony based in part on its faulty interpretation of Sanchez and in part on an artificial restriction on the duration of the conservator's negligent performance of duties resulted in a miscarriage of justice.
2. The Role of the Sanchez Opinion in this Case
Sanchez, supra, 63 Cal.4th 665, was by any measure a watershed case from the Supreme Court on hearsay, the confrontation clause, and especially on the scope of expert opinion. It held that an expert, there a gang expert in a criminal case, could rely on hearsay to form his or her opinions and could tell the trier of fact in a general way what was relied upon, but he or she could not recite as fact testimonial case-specific hearsay before the factfinder without violating both the confrontation clause and the hearsay rule. (Id. at pp. 670-671, 686.)
Notably, the confrontation clause at issue in Sanchez is inapplicable to civil proceedings. (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284, fn. 6 ["The constitutional rule announced in Sanchez does not extend to civil cases."].) Therefore, the question whether a given out-of-court statement was "testimonial" does not arise in the civil context, as it does in criminal cases. (See, e.g., Sanchez, supra, 63 Cal.4th at pp. 687-694.) Yet, motion in limine no. 3 was based on the confrontation clause, and to the extent Judge Fenstermacher based her ruling on that clause, it was error.
Nonetheless, Sanchez effected a change in state law concerning the admissibility of hearsay through the testimony of an expert (Sanchez, supra, 63 Cal.4th at pp. 674-679, 687-694), proclaiming that while an expert may rely on hearsay in forming an opinion, he or she may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686; see People v. Flint (2018) 22 Cal.App.5th 983, 996; People v. Roa (2017) 11 Cal.App.5th 428, 446-453 [sexually violent predator (SVP) proceeding].) To that extent, Sanchez does apply to civil cases (People v. Bona (2017) 15 Cal.App.5th 511, 520 [commitment of mentally disordered offender]; People v. Burroughs (2016) 6 Cal.App.5th 378, 405, fn. 6 [SVP proceeding]), including conservatorship proceedings. (Conservatorship of K.W., supra, 13 Cal.App.5th at p. 1282 [LPS conservatorship].) We therefore apply this aspect of Sanchez to the case before us.
2. The Scope of Allowable Testimony by Elizondo
The probate court found Elizondo "never treated [B.S.], and thus the basis of Dr. Elizondo's expert testimony relies upon medical records that he did not create; as such, these records constitute inadmissible hearsay that are not subject to any recognized exception or non-hearsay classifications in the Evidence Code. Pursuant to People v. Sanchez[, supra, 63 Cal.App.4th 665], an otherwise qualified expert may not state as fact any case-specific facts asserted in medical records, unless those medical records otherwise meet a hearsay exception or exemption. [¶] The Court limited the expert testimony of Dr. Paul Elizondo III, and precluded the admission of Dr. Elizondo's testimony as it related to the content of [B.S.]'s medical records. The Court further finds that any testimony of the expert witness that states as fact any case-specific facts asserted in [B.S.]'s medical records that are not otherwise admitted as an exception to hearsay are inadmissible on such ground at trial." (Footnote omitted.)
Judge Fenstermacher did not preclude Elizondo from testifying altogether; he took the stand for about an hour, which was half the original estimate. The statement of decision did not summarize Elizondo's testimony on the topics on which he was allowed to testify. What Elizondo's opinions were, and how much he was allowed to testify about them at trial, is not a matter of record in this court. Responsibility for the lack of an adequate record lies with the appellant and can result in dismissal.
Failure to provide a reporter's transcript could in many circumstances prove fatal to an appellant's claim of evidentiary error. (See Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; Chodos v. Cole (2012) 210 Cal.App.4th 692, 722; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187; see generally Jameson v. Desta (2018) 5 Cal.5th 594, 608-610.)
We infer, however, that the court's evidentiary ruling on motion in limine no. 3 substantially interfered with Elizondo's ability to explain his opinions, and it undoubtedly undercut the probative value of the expert testimony that Father offered to show Mother's "[c]ontinued failure to perform [her] duties" (Prob. Code, § 2650, subd. (c)) by failing to provide "appropriate" "medical and psychological services" for B.S. (Prob. Code, § 2351.5. subd. (a)(2)), an issue not adjudicated in January 2017. The probate court's blanket prohibition of Elizondo's testimony to the contents of B.S.'s medical records was error under Sanchez. Sanchez allows such testimony by an expert so long as he or she does not relate as true facts that are not covered by a hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 686.)
The probate court correctly stated that Elizondo could rely on hearsay in B.S.'s medical records for purposes of forming his professional opinions. (Sanchez, supra, 63 Cal.4th at p. 685; People v. Flint, supra, 22 Cal.App.5th at p. 996.) It is clear from the statement of decision, however, that Elizondo was not allowed to testify to any content from any medical record because the trial court concluded as a blanket rule that B.S.'s medical "records constitute inadmissible hearsay that are not subject to any recognized exception or non-hearsay classifications in the Evidence Code."
On the contrary, medical diagnoses based on reported symptoms were recognized as a hearsay exception even at common law. (Sanchez, supra, 63 Cal.4th at p. 678.) Under the Evidence Code, medical and hospital records, if properly authenticated (which may be done in writing), may fall within the business records exception. (Evid. Code, §§ 1271, 1561, 1562; see Sanchez, supra, 63 Cal.4th at p. 675 [medical records and patient's statements may qualify for hearsay exceptions]; United States v. Ellis (2006) 460 F.3d 920, 922, 926-927 [medical records establishing the presence of methamphetamine in defendant's system were nontestimonial business records]; People v. Diaz (1992) 3 Cal.4th 495, 534-535; People v. Yates (2018) 25 Cal.App.5th 474, 486 ["[h]ospital records and similar documents are often admissible as business records"]; Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447-448 [medical records admissible in conservatorship proceeding]; People v. Nelson (2012) 209 Cal.App.4th 698, 710; In re Troy D. (1989) 215 Cal.App.3d 889, 902-903 [minor's hospital records admissible in dependency proceeding over mother's hearsay objection]; see generally People v. Beeler (1995) 9 Cal.4th 953, 980-981 ["to be admissible under the business records exception, the evidence '. . . must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion. . . .' ", quoting People v. Terrell (1955) 138 Cal.App.2d 35, 57.) Of course, for any given document, there may be multiple levels of hearsay to be analyzed. (See Sanchez, supra, 63 Cal.4th at p. 675; Yates, supra, 25 Cal.App.5th at p. 482.) But the trial court was wrong to exclude all expert testimony about all "content" of B.S.'s medical records and all expert testimony about matters predating January 27, 2017.
The medical and psychiatric records on which Dr. Elizondo relied were produced in response to Mother's subpoena duces tecum and shared with Father and his counsel in accordance with their agreement to keep the records confidential. Presumably they were accompanied by a certificate of the custodian of records. (See Evid. Code, § 1560.)
If, on remand, properly authenticated medical records are produced in court or submitted for admission, a qualified expert witness should be allowed to testify about the relevant contents of those records, even if they were created before the 2017 trial, to the extent allowable under normal hearsay rules and authorized by Sanchez, supra, 63 Cal.4th at pages 679-686. G. The Evidentiary Errors, Considered Cumulatively, Were Prejudicial
We conclude as a matter of law the court erred in excluding all evidence predating the 2017 trial on the basis of res judicata and collateral estoppel. We also conclude the trial court unduly restricted the testimony of Father's expert witness, Dr. Elizondo, due to its misapplication of Sanchez, supra, 63 Cal.4th 665. By excluding what amounted to a large part of Father's evidence, the court cut the legs out from under his case. In light of those errors, we conclude we must reverse and remand for a new trial on Father's petitions.
We regard this as a very close case on the merits. Father put forth a convincing argument that Mother was ignoring medical advice concerning treatment and had continued using cannabis as a primary treatment for B.S.'s profound medical problems long after medical personnel advised her to abandon cannabis as a treatment. In our view, if proven and if supported by medical testimony, that may well be a sufficient basis to remove Mother as conservator under Probate Code sections 2650, subdivision (c) and 2351.5, subdivision (a)(2), at least if Mother's medical decisions on B.S.'s behalf could be tied to B.S.'s deteriorating physical or mental condition during her term as conservator (e.g., loss of weight, spitting problem, any increase in aggression). Coupled with her discontinuance of other forms of medical treatment prescribed by specialists at UCSF and other doctors, this evidence could have convinced the trier of fact that Mother was subject to removal. (See Prob. Code, §§ 2351.5, subd. (a)(2), 2650, subd. (c).)
Father had a right to present evidence predating the 2017 trial—even predating Mother's original ex parte petition—in order to show that B.S.'s condition had declined after Mother was appointed temporary conservator. Of course, medical evidence must support Father's allegation that Mother's acts or omissions caused or contributed to the new or worsening symptoms, which in practical terms demands the testimony of an expert. But on that score, too, the judge's evidentiary rulings on the in limine motions significantly undercut the effectiveness of Father's expert by limiting his testimony temporally and in terms of content. We conclude the two faulty evidentiary rulings together were prejudicial under the state law standard. Erroneous exclusion of nontestimonial hearsay is a state law error only, assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Roa, supra, 11 Cal.App.5th at p. 455 [civil SVP proceeding]; People v. Calhoun (2019) 38 Cal.App.5th 275, 316 [Watson standard applied to nontestimonial Sanchez error]; People v. Flint, supra, 22 Cal.App.5th at pp. 1003-1004 [same]; see People v. Sanchez, supra, 63 Cal.4th at pp. 684-686.) It is reasonably probable that a result more favorable to Father would have been achieved if his presentation of evidence had not been hindered by the court's erroneous evidentiary rulings. (Watson, at p. 836.)
III. DISPOSITION
The order entered June 22, 2018 is reversed and the cause is remanded for retrial on Father's petitions for removal of Mother as limited conservator of the person and estate of B.S. and for appointment of himself as limited conservator of B.S. In the interests of justice, the parties shall bear their own costs on appeal.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
BROWN, J.