Pub. Guardian of the Cnty. of San Luis Obispo v. S.A. (In re S.A.)
| Decision Date | 19 July 2018 |
| Docket Number | 2d Civil No. B284312 |
| Citation | 235 Cal.Rptr.3d 744,25 Cal.App.5th 438 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CONSERVATORSHIP OF the Person of S.A. Public Guardian of the County of San Luis Obispo, as Conservator, etc., Petitioner and Respondent, v. S.A., Objector and Appellant. |
Julia Freis, under appointment by the Court of Appeal, for Objector and Appellant.
Rita L. Neal, County Counsel, Hillary A. Matos and Leslie Kraut, Deputies County Counsel, for Petitioner and Respondent.
S.A. appeals an order granting the petition of the Public Guardian of the County of San Luis Obispo (Public Guardian) for reappointment as the conservator of her person. A jury found beyond a reasonable doubt that she continues to be gravely disabled as a result of a mental disorder. ( Welf. & Inst. Code, 1 § 5000 et seq.; Lanterman-Petris-Short Act (LPS Act).)
S.A. contends her constitutional and statutory rights were violated when Public Guardian subpoenaed records of her care and treatment, signed an authorization for their release on her behalf, and then used the records against her at trial. We affirm.
S.A. suffers from schizoaffective disorder. She has not lived independently for more than 20 years. She has had many commitments to the County Psychiatric Health Facility (the PHF) and several LPS conservatorships.
In the summer of 2016, the trial court reappointed Public Guardian for a one-year period as S.A.’s conservator. We affirmed the order. (Conservatorship of S.A. (July 19, 2017, B276247) [nonpub. opn.].)
As that conservatorship period expired, Public Guardian petitioned to be reappointed again. S.A. contested the petition and requested a jury trial. The court set trial to commence in 25 days. (§ 5350, subd. (d).)
Two weeks before trial, Public Guardian served S.A. with copies of documents it intended to use as exhibits, including records of S.A.’s care and treatment at the PHF and at a board and care facility. S.A. moved in limine to preclude Public Guardian’s experts from testifying to case-specific hearsay and opinions of other experts contained in those records pursuant to People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ).
When Public Guardian received S.A.’s motion, it served both facilities with subpoenas for production of authenticated copies of the records and gave S.A. notice of the subpoenas. Public Guardian signed authorizations for release of the records on S.A.’s behalf. The custodians of the records produced them along with affidavits attesting that the records were prepared in the ordinary course of business at or near the time of the events recorded.
S.A. amended her motion in limine to object to the use of the records at trial on the following grounds: she did not receive 10 days notice before their production ( Code Civ. Proc., § 1985.3, subd. (b)(2) ); Public Guardian had no authority to release them because it is not "the consumer ... or her attorney" (id ., subd. (c)(2) ); the records lacked foundation as business records because the affiants did not demonstrate knowledge of the method of their preparation ( Evid. Code, § 1271 ); the records are protected by S.A.’s physician-patient privilege (id ., § 994)2 ; her right to confront witnesses precludes any expert from relating case-specific facts or opinions of others in the records; and her right to due process would be violated if Public Guardian were permitted to "change hats" by using the records against her in an adversarial proceeding after obtaining them with its powers as her conservator.
At the hearing on S.A.’s motion, the trial court said it would not allow experts to testify to case-specific hearsay not otherwise proved by admissible evidence, pursuant to Sanchez . It also accepted S.A.’s proposed redactions of conclusions, opinions, and remote or immaterial matters that she identified in the records. It otherwise overruled her objections, finding that the 10-day notice-to-consumer provision of Code of Civil Procedure section 1985.3 was not intended to apply to LPS proceedings; that Public Guardian was authorized by statute to sign the release of records and to waive S.A.’s privileges on her behalf; and that the records fall within the business records exception to the hearsay rule based on the custodians’ affidavits and the court’s review of the records.
At trial, psychiatrist Rose Drago read excerpts of the redacted records to the jury. She relied on them in part for her opinion that S.A. suffers from schizoaffective disorder, bipolar type, and is unable to provide for her own basic needs outside of a highly structured environment. Drago also relied on her 15 years of personal experience treating S.A., first as a staff psychiatrist and then as medical director for the County Mental Health Department until her retirement in 2011, and upon subsequent interviews with S.A., including an interview three days before trial.
Drago testified that she did not personally observe S.A. at the board and care facility, but reviewed records from S.A.’s five-day stay there. She described staff entries including the following: S.A. was threatening and aggressive and attempted to physically assault staff before she was transferred from the board and care facility to the PHF; said to a physician ; accused staff of keeping her property of "$100 million"; said that her spinal problems were the result of a fall caused by overmedication; said she was angry with her conservator and felt persecuted; refused a full injection of Haldol but agreed to a partial dose; said she healed a deaf man and made him speak; and said she had a $15 million Hyundai that was a submarine.
Drago also related details from the PHF records, including these: a staff member saw S.A. smoking, she had cigarettes and a lighter, and she said she was not a patient but was applying for a job; a staff member saw S.A. demand her cigarettes, wallet and phone so she could "call her ride"; she denied being under conservatorship and said she owned a home in Atascadero.
S.A. testified that she does not have a mental illness. She described her plans to work, find a place to live, and to feed herself if allowed to live independently. She testified she "always" takes her medication voluntarily except once when she was "crippled." She denied making certain statements attributed to her in the records.
In closing argument, counsel for Public Guardian referred to excerpts of the records and encouraged the jury to read them. The jury unanimously decided S.A. is gravely disabled, and the trial court renewed her conservatorship for a one-year period.
In a subsequent, bifurcated disabilities hearing, Public Guardian offered into evidence a record of a postverdict assessment by the County Behavioral Health Department. S.A.’s counsel objected to most of it on hearsay grounds, and "underline[d]" the part she "thought would be admissible under the business record[s exception]." The trial court sustained that objection and admitted only the underlined portion.
Public Guardian offered S.A.’s records to prove "the historical course of [her] mental disorder," a matter the jury was required to consider based on S.A.’s "medical records as presented to the court, including psychiatric records." (§ 5008.2, subd. (a); CACI 4011.) We conclude Public Guardian was authorized to do so, and that the manner of production and use of the records did not violate S.A.’s statutory or constitutional rights.
In civil cases generally, a party who subpoenas a consumer’s records must either demonstrate service to "the consumer ... or her attorney" at least 10 days before the date set for production, or furnish to the producing witness a written authorization for release signed by "the consumer ... or her attorney." ( Code Civ. Proc., § 1985.3, subds. (b) & (c).) Public Guardian gave S.A. a one-day notice before the date of production. It signed the authorization for release on her behalf. We agree with the trial court that the technical noncompliance with Code of Civil Procedure section 1985.3 ’s 10-day notice requirement did not render the production improper in this LPS proceeding and that Public Guardian was authorized to sign the release on S.A.’s behalf.
The rules of civil procedure generally apply to this special proceeding of a civil nature. ( Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 432, 161 Cal.Rptr.3d 794 ( Sorenson ).) But specific and accelerated rules of procedure apply to a contested petition for appointment. (§ 5350, subd. (d).) The Legislature could not have intended the 10-day notice-to-consumer provision to apply in such a proceeding because trial must commence within 10 days after the proposed conservatee demands it and the court may only continue trial for 15 days upon request of the proposed conservatee. ( Ibid . )
The accelerated procedure did not undermine Code of Civil Procedure section 1985.3 ’s purpose, which is to give the consumer notice and an opportunity to object to disclosure of private information. ( Foothill Federal Credit Union v. Superior Court (2007) 155 Cal.App.4th 632, 638, 66 Cal.Rptr.3d 249.) Production to Public Guardian was not a disclosure of the sort the statute was designed to protect against, because Public Guardian already had this private information as the overseer of S.A.’s care (§ 5328; Prob. Code, §§ 2351, 2355 [] ). Before the records were disclosed to the jurors, S.A. had 14-day’s notice of Public Guardian’s intent to use them at trial and the opportunity to object in a written motion in limine, an amended motion in limine, and two lengthy court...
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