Conservatorship of Ivey

• Court: California Court of Appeals
• Writing for the Court: LEWIS; WIENER, Acting P.J., and WORK
• Citation: 231 Cal.Rptr. 376,186 Cal.App.3d 1559
• Parties: In re the CONSERVATORSHIP OF the Person of Glenys IVEY. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. Glenys IVEY, Conservatee and Appellant. 1 D003544.
• Decision Date: 21 October 1986

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231 Cal.Rptr. 376 186 Cal.App.3d 1559 In re the CONSERVATORSHIP OF the Person of Glenys IVEY.
SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent,
v.
Glenys IVEY, Conservatee and Appellant. [And four other cases.] ¹ D003544. Court of Appeal, Fourth District, Division 1, California. Oct. 21, 1986.
Review Denied Jan. 29, 1987 in Nos. D003748 and D004027.

[186 Cal.App.3d 1562]

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Sharron Voorhees, Michele Sacks Lowenstein, Robert D. Frank, Joel M. Kriger and John M. Schau, San Diego, under appointment by the Court of Appeal, for conservatee and appellant.

Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, Susan A. Crabtree and Mark C. Mead, Deputy County Counsel, San Diego, for petitioner and respondent.

LEWIS, Associate Justice.

I

FACTUAL AND PROCEDURAL BACKGROUND

In each of these cases consolidated on appeal, the superior court found the proposed conservatees gravely disabled within the meaning of the Lanterman-Petris-Short Act (WELF. & INST.CODE, §§ 5000²-5464) (LPS Act) and appointed conservators of the person for each of them.

The conservatees appeal the orders appointing the conservators. ³ They jointly raise the issue of whether transmittal of the conservatorship investigation report to the proposed conservatee as required by section 5354 is satisfied by service of the report on the proposed conservatee's court-appointed attorney under Code of Civil Procedure section 1015. In each of [186 Cal.App.3d 1563] these

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cases, except Stroud's, ⁴ the Counselor in Mental Health as the officer providing conservatorship investigation personally served the report on the facility at which each proposed conservatee resided and served the report by mail on the attorney appointed to represent each proposed conservatee. In no case, except Stroud's, did the counselor give or mail the report directly to the proposed conservatee.

The conservatees contend this practice violates the language of section 5354 which requires the report be transmitted to them. ⁵ They variously challenge this alleged statutory violation as a denial of due process and a defect in jurisdiction. Glenys Ivey additionally challenges the court's personal jurisdiction over her. Charles Stulken also claims the court erred by not directly consulting with him at the conservatorship hearing as required by Probate Code section 1828, subdivision (b).

For convenience, we discuss only Ivey's appeal in Part II of this opinion and we hold the plain meaning of the statute requires at minimum the mailing of the report to the proposed conservatee. We conclude, however, that on the facts of this case the statutory violation neither denied the conservatee due process of law nor deprived the superior court of jurisdiction over her. We thus affirm the judgment in Ivey's case and, based on our opinion in Part II, we also affirm the judgment in each of the other cases.

II APPEAL OF IVEY

Since its adoption in 1967, ⁶ section 5354 has required transmission of the conservatorship investigation report to the proposed conservatee. Neither at the statute's inception nor in its subsequent amendments ⁷ has the Legislature elaborated on the meaning of "transmit" in this context. In addition, the parties have not identified nor has our research revealed any case law interpreting the section on this point.

[186 Cal.App.3d 1564] Section 5350 ⁸ provides the procedures of Division 4 of the Probate Code shall apply to the establishment, administration and termination of conservatorship for the gravely disabled under the LPS Act. We have examined Division 4 (Prob.Code, §§ 1400-3803) and have found no relevant sections which illuminate our issue. Chapter 3 of Division 4 (§§ 1460-1469) in particular deals with notices, but it is silent on the matter of transmission of an investigative report. Even section 1460 which specifically lists the conservatee as the recipient of notice deals only with the particulars of the issuance of notice of hearing. The section is not applicable to transmission of a conservatorship investigation report.

Moreover, section 5350, subdivision (e), provides the conservatorship investigation shall be conducted according to the LPS

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Act and not the Probate Code. In addition, subdivision (f) makes it clear that LPS Act provisions on a particular point control over Probate Code provisions. The section here in question, section 5354, is one such provision. As the Probate Code does not control or provide guidance on the issue of transmission of the report to the proposed conservatee, we turn to interpretation of the Welfare and Institutions Code section itself.

The language of the section is clear. The common meaning of the verb "transmit" as described in Webster's Third New International Dictionary (1966) is "to cause to go or be conveyed to another person or place; send." (P. 2429.) Black's Law Dictionary (5th ed. 1979) also defines "transmit" as "[t]o send or transfer from one person or place to another, or to communicate." (P. 1344.) As the section provides the report shall be transmitted to the proposed conservatee, its plain meaning requires at minimum the mailing of the report directly to the proposed conservatee. The Legislature is presumed to have meant what it said and the plain meaning of the statute governs. (Great Lake Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.)

Moreover, the LPS Act since its inception has required the provision of an attorney for the proposed conservatee. (§ 5365.) Being aware of this attorney-client relationship, the Legislature could have specified the report be sent to the attorney. As the Legislature did not, we can only apply the statute as written.

[186 Cal.App.3d 1565] The Department of Social Services contends Code of Civil Procedure section 1015 controls and permits, even requires, the report be sent to the proposed conservatee's attorney. Code of Civil Procedure section 1015 provides in part:

"[I]n all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except the service of subpenas, of writs, and other process issued in the suit."

However, Code of Civil Procedure section 1015 does not control as it is superseded in this case by the specific statutory provisions of section 5354. Unless repealed expressly or by necessary implication, a special statute dealing with a particular subject constitutes an exception so as to control and take precedence over a conflicting general statute on the same subject. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420, 12 Cal.Rptr. 183, 546 P.2d 687; 58 Cal.Jur.3d, Stats., § 109, pp. 488-489.) This is the case regardless of whether the special provision is enacted before or after the general one (Agricultural Labor Relations Bd., supra, 16 Cal.3d at p. 420, 12 Cal.Rptr. 183, 546 P.2d 687), and notwithstanding that the general provision, standing alone, would be broad enough to include the subject to which the more particular one relates. (County of Placer v. Aetna Cas. Etc. Co. (1958) 50 Cal.2d 182, 189, 323 P.2d 753; 58 Cal.Jur.3d, Stats., § 109, pp. 488-489.)

This rule does not apply if the general and specific statutes can...