Conservatorship of S.A.

Filed 7/19/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conservatorship of the Person 2d Civil No. B284312

of S.A. (Super. Ct. No. 14PR-0145)

(San Luis Obispo County)

PUBLIC GUARDIAN OF THE

COUNTY OF SAN LUIS

OBISPO, as Conservator, etc.,

Petitioner and Respondent,

v.

S.A.,

Objector and Appellant.

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.

FACTUAL AND PROCEDURAL HISTORY

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 (Sanchez).

1 Allstatutory references are to the Welfare and

Institutions Code unless otherwise stated.

2

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.

2 S.A. acknowledges that she did not raise the

psychotherapist-patient privilege in the trial court and that “most

of the material” in the records “would not fall under” that

privilege.

3

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 “I

hate you because you’re a woman and doctor. I don’t need a

psychiatrist. I’ll decide if I want to hire you or fire you. I only

work with Ph.D.s. Are you a Ph.D.? You could be a lunatic”;

accused staff of keeping her property of “$100 million”; said that

4

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.

5

DISCUSSION

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.

The Production of S.A.’s Consumer Records and the Conservator’s

Adverse Use of Them

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 (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

6

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.) 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 [conservator’s exclusive authority to

make health care decisions]). 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 hearings on their admissibility. Technical compliance with

Code of Civil Procedure section 1985.3 would have contributed

nothing to the fairness of these LPS proceedings.

Code of Civil Procedure section 1985.3 does not

expressly authorize Public Guardian to sign a release on S.A.’s

behalf, but more specific statutes do. Medical providers are

authorized to release a patient’s records upon “written

authorization . . . signed by . . . the . . . conservator of . . . her

person or estate.” (Evid. Code, § 1158, subd. (b).) And a

“conservator” is the “holder” of the psychotherapist-patient

privilege and the physician-patient privilege “when the patient

has a . . . conservator.” (Evid. Code, §§ 993, 1013.) All

information and records obtained in the course of providing

services under the LPS Act are generally confidential (§ 5328),

7

but they may be disclosed, (1) “in the course of conservatorship

proceedings,” when the patient or “her conservator” consents (id.,

subd. (a)(1)); (2) whenever the “conservator . . . designates, in

writing, persons to whom” they may be disclosed (id., subd.

(a)(4)); or (3) “[t]o the courts, as necessary to the administration

of justice” (id., subd. (a)(6)). Public Guardian was thus expressly

authorized to release the records for use in the conservatorship

proceedings, and it was authorized to use them to prove “the

historical course of [S.A.’s] mental disorder.” (§ 5008.2.)

S.A. contends the trial court violated her

constitutional rights to privacy and due process when it allowed

Public Guardian to use its position as her conservator to obtain

and introduce evidence against her in adversarial proceedings.

She points out that she has a right to privacy (Cal. Const., art. I,

§ 1); she is not presumed to be incompetent as a result of her

conservatorship (Riese v. St. Mary’s Hospital & Medical Center

(1987) 209 Cal.App.3d 1303, 1313); and a person under

conservatorship retains all rights not specifically denied under

the LPS Act (Edward W. v. Lamkins (2002) 99 Cal.App.4th 516,

526). She argues that, as the holder of her privileges, Public

Guardian had a duty to protect her privacy and she points out

that a conservator’s powers are not unlimited, but must be

exercised “in accordance with the conservator’s determination of

the conservatee’s best interest,” taking into account any known

personal values of the conservatee. (Prob. Code, § 2355; see also

Prob. Code, §§ 1800, subd. (e), 1812, subd. (a); Conservatorship of

Lefkowitz (1996) 50 Cal.App.4th 1310, 1314.) She further argues

she should have the same procedural protections in this

reestablishment proceeding as she would in an initial proceeding,

where Public Guardian would not have authority to release her

8

records. (Conservatorship of Deidre B. (2010) 180 Cal.App.4th

1306, 1312 [“The reestablishment hearing is conducted according

to the same rules that govern the initial establishment of a

conservatorship”].)

S.A.’s rights to privacy and due process were fully

protected. The trial was not open to the public and her records

are sealed. (§ 5118; Sorenson, supra, 219 Cal.App.4th at p. 416.)

She retains many of her rights, but the LPS Act denies her the

right to exclusive control of her medical records as a consequence

of her preexisting conservatorship. Public Guardian had a

statutory duty to determine whether S.A.’s conservatorship

should be reestablished and, if she contested that determination,

as she did here, to provide the jury with her psychiatric records to

help it determine whether a conservatorship is appropriate.

(§ 5008.2; CACI 4011.) Public Guardian exercised its powers in

accordance with its determination of S.A.’s best interests when it

decided she remained unable to care for herself. Significant

safeguards protected her against any misuse of Public Guardian’s

powers: she had a right to counsel and to a unanimous jury

finding based on proof beyond a reasonable doubt.

(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541.)

S.A. points to cases that illustrate limitations on a

conservator’s powers, but none of them apply here. In Michelle K.

v. Superior Court (2013) 221 Cal.App.4th 409, 447, the court held

a conservator does not have the power to replace a conservatee’s

court-appointed independent counsel with counsel the

conservator selects, because to do so would “render her right to

independent counsel meaningless.” But here the conservator did

not interfere with S.A.’s counsel. Her counsel independently and

zealously opposed Public Guardian’s case, including its use of

9

S.A.’s records at trial. In Conservatorship of Wendland (2001) 26

Cal.4th 519, 523-524, the court held that a conservator may not

withhold artificial nutrition and hydration from a conservatee

who is not terminally ill, comatose, or in a persistent vegetative

state without clear and convincing evidence that the decision is in

the conservatee’s best interest or consistent with their own

wishes. But here, statutes authorized Public Guardian to pursue

reappointment based on grave disability, regardless of S.A.’s

contrary wishes.

S.A. cites a dependency case, In re M.L. (2012) 210

Cal.App.4th 1457, 1469-1470, for the principle that evidence

disclosed at the request of a conservator pursuant to section 5328

is not automatically admissible: “The proponent seeking

admission of the disclosed, privileged evidence at trial has the

additional burden of proving that it comes within some

statutorily or case-based exception to the psychotherapist-patient

privilege.” But in this LPS proceeding, the records come within a

statutorily based exception: section 5328 expressly authorizes

disclosure of psychotherapy records “in the course of

conservatorship proceedings.” (§ 5328, subd. (a)(1); see also §

5008.2; CACI 4011.)

Hearsay

S.A. contends the records were inadmissible hearsay,

and that Drago impermissibly relayed to the jury case-specific

facts within them that were not otherwise proven. (Evid. Code, §

1200; Sanchez, supra, 63 Cal.4th at p. 686; Conservatorship of

K.W. (2017) 13 Cal.App.5th 1274, 1285-1286.) She points out

that civil litigants have a due process right to cross-examine

witnesses. (Long v. Long (1967) 251 Cal.App.2d 732, 736.) We

conclude S.A.’s medical records, as redacted, were admissible

10

under the business records exception to prove the acts,

conditions, and events recorded therein. (Evid. Code, § 1271.)

We further conclude that Drago did not relate any prejudicial

case-specific facts not independently proven by admissible

evidence. Because we conclude the records are admissible under

the business records exception, we do not reach Public Guardian’s

further contention that section 5008.2 operates as an

independent exception to the hearsay rule when medical records

are offered to prove the historic course of a proposed

conservatee’s mental disorder.

The trial court has wide discretion to determine

whether there is a sufficient foundation to qualify evidence as a

business record; we will overturn its decision to admit such

records only upon a clear showing of abuse. (People v. Beeler

(1995) 9 Cal.4th 953, 978-979.) The business records exception

requires a foundational showing that (1) the writing was made in

the regular course of business; (2) at or near the time of the act,

condition, or event; (3) the custodian or other qualified witness

testifies to its identity and mode of preparation; and (4) the

sources of information and mode and method and time of

preparation indicate trustworthiness. (Evid. Code, § 1271;

Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 737-738.) These

requirements may be satisfied by affidavit. (Evid. Code, § 1561;

Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044

(Cooley).)

The trial court expressly found the records were

trustworthy and supported by a sufficient foundation. The

records from the board and care facility were accompanied by a

declaration of a clinical administrative assistant who attests they

were prepared or compiled by the facility’s personnel in the

11

ordinary course of business at or near the time of the acts,

conditions, or events recorded, “to the best of [her] knowledge.”

The records from the PHF were accompanied by a substantially

similar declaration from a medical records supervisor. The

affidavits comply with Evidence Code section 1561, the purpose of

which is to “ensure that such [nonparty business] records may . . .

be admissible without requiring their authenticity to be proved

through live testimony from the custodian of records or other

qualified witness.” (Sen. Rules Com., Off. of Sen. Floor Analyses,

3d reading analysis of Assem. Bill No. 3001 (1995-1996 Reg.

Sess.) May 16, 1996, p. 1; Cooley, supra, 140 Cal.App.4th at p.

1045.)

S.A. contends the affiants do not establish their

knowledge of the mode of preparation because they describe it

only “to the best of [their] knowledge” and they do not provide

sufficient information about the source of the information in each

record. But it is not necessary that the witness called to present

foundational facts have personal knowledge of every transaction;

he need only be familiar with the procedures followed. (Jazayeri

v. Mao (2009) 174 Cal.App.4th 301, 322.) S.A. contends both

declarations fail to identify the records involved, but both identify

the documents as those “submitted with this declaration.”

S.A. argues that not every entry expressly states that

the person who recorded it was the direct observer. She points,

for example, to an entry that begins “Per staff . . .” and questions

whether the writer witnessed the events. But the trial court

considered these arguments, reviewed the records, and found the

PHF records were “clearly the reports of persons and staff,

licensed psychiatric technicians, . . . who are reporting [S.A.’s]

observed conduct” and the board and care facility records were

12

“obviously the observations . . . of the people in the psychiatric

program.” The trial court accepted S.A.’s proposed redactions

and found Public Guardian laid a sufficient foundation for their

admission.

Drago’s testimony about the contents of the records

did not violate S.A.’s constitutional rights because she related

only case-specific facts that were proved by admissible evidence.

An expert witness may rely on hearsay in forming an opinion,

and may tell the jury “in general terms” that she did so, but 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 pp. 685-686, italics omitted; Evid. Code, §§ 801,

802.) Sanchez applies to conservatorship proceedings.

(Conservatorship of K.W., supra, 13 Cal.App.5th at p. 1284.)

Here, the case-specific hearsay related by Drago came from

medical records that qualified for admission under the business

records exception to the hearsay rule.

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

13

Donald Umhofer, Judge

Superior Court County of San Luis Obispo

______________________________

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.