Conservatorship of L.P. CA1/2 ( 2022 )

Filed 7/13/22 Conservatorship of L.P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Person of
L.P.
PUBLIC GUARDIAN OF CONTRA
COSTA COUNTY,
A163630
Petitioner and Respondent,
v. (Contra Costa County
Super. Ct. No. P1701255)
L.P.,
Objector and Appellant.
L.P. appeals from the trial court’s order reappointing respondent
Contra Costa County Public Guardian (public guardian) conservator of her
person pursuant to the Lanterman-Petris-Short Act (LPS) Act (Welf. & Inst.
Code, § 5000 et seq.). However, because L.P. consented to a later
reappointment of respondent as conservator during the pendency of this
appeal, we will dismiss the appeal as moot.
BACKGROUND
In 2017, the public guardian was appointed conservator for L.P. The
public guardian was reappointed conservator in 2018 and 2019.
On December 1, 2020, the public guardian filed a petition for
reappointment as conservator.
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After several continuances, a court trial on the petition was held on
August 24 and 30, 2021, with testimony from L.P.’s conservator and Dr.
Michael Levin, a psychiatrist with Contra Costa County. At the conclusion of
the trial, the trial court issued an order reappointing the public guardian as
conservator.
On September 27, L.P. filed a notice of appeal of the August 30
conservatorship order. On appeal, L.P. argues that certain statements in her
medical records, relied upon by Dr. Levin in reaching his opinions, were
“case-specific” hearsay not subject to any hearsay exception and should not
have been admitted into evidence under People v. Sanchez (2016) 63 Cal.4th
665 (Sanchez).
On December 9—while this appeal was pending—the public guardian
again petitioned for reappointment as conservator, indicating that the
conservatorship would otherwise terminate on January 8, 2022. According to
a declaration from counsel for the public guardian, a reappointment hearing
was ultimately held on May 6, 2022, at which hearing L.P.’s counsel indicated
that L.P. accepted reappointment of the conservatorship. The trial court
reappointed the public guardian as conservator for a one-year period
beginning January 9, 2022.
On May 12, 2022—after L.P.’s opening brief but before respondent’s
brief was filed—the public guardian filed a request for judicial notice, motion
to take additional evidence, and motion to dismiss, requesting that we take
judicial notice of the December 9, 2021 petition for reappointment and the
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trial court’s May 10, 2022 order granting that petition, and dismiss the
appeal as moot.1
DISCUSSION
“[A]n action that originally was based on a justiciable controversy
cannot be maintained on appeal if all the questions have become moot by
subsequent acts or events. A reversal would be without practical effect, and
the appeal will therefore be dismissed.” (9 Witkin, Cal. Procedure (6th ed.
2021) Appeal, § 777, p. 797.) “ ‘ “[T]he critical factor in considering whether
[an] appeal is moot is whether the appellate court can provide any effective
relief if it finds reversible error.” (In re N.S. (2016) 245 Cal.App.4th 53, 60.)’ ”
(Sturgell v. Department of Fish & Wildlife (2019) 43 Cal.App.5th 35, 43–44,
quoting In re David B. (2017) 12 Cal.App.5th 633, 644.)
The one-year conservatorship initiated by the order at issue in this
appeal expired on January 8, 2022. On May 10, 2022, the court granted the
public guardian’s petition for reappointment as conservator, effective
January 9, 2022. The 2021 reappointment order therefore has no remaining
force and effect and, as its reversal would have no effect on the subsequent
2022 order, this appeal cannot provide L.P. with any effective relief.
Accordingly, the appeal is moot.
L.P. concedes as much, agreeing on reply that the appeal is “technically
moot,” but asking that we exercise our discretion to decide it for three
reasons—(1) because the appeal was rendered moot “solely as a result of
artificial delays in the adjudication of the prior conservatorship petition,”
(2) because it is “possible” the issues involved could recur in future
1We grant the public guardian’s motion and will take judicial notice of
the December 9, 2021 petition for reappointment and the trial court’s May 10,
2022 order granting that petition. (See Evid. Code, § 452, subds. (c) & (d).)
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conservatorship petitions involving L.P., and (3) because it raises questions of
broad public interest–what L.P. calls “matters involving Sanchez generally,
but also the validity of Conservatorship of S.A. (2018) 25 Cal.App.5th 438,” on
which the public guardian relies.
There are indeed three discretionary exceptions to the rule against
adjudicating moot claims. A reviewing court may decide an appeal on the
merits “ ‘when there remain “material questions for the court’s
determination” [citation], where a “pending case poses an issue of broad
public interest that is likely to recur” [citation], or where “there is a likelihood
of recurrence of the controversy between the same parties or others.” ’ ” (In re
David B., supra, 12 Cal.App.5th at p. 644, quoting In re N.S., supra,
245 Cal.App.4th at p. 60.)
We are aware of our discretionary authority but decline to exercise it
under the circumstances of this case.
First, whether we should exercise our discretion to reach the merits has
nothing to do with whether the delays that contributed to mooting the appeal
were “artificial,” but instead with whether there is any effective relief that
can be granted.
Second, L.P. has offered no argument that the question of whether the
challenged statements in her medical records are hearsay would likely recur
in connection with future conservatorship petitions regarding L.P. All of the
statements at issue predate July 1, 2020. L.P. does not assert that any
petition for reappointment of the conservator has been or will be filed, and
the current conservatorship will be in effect until early 2023.
With respect to question of “broad public interest” and what L.P. calls
“matters involving Sanchez generally, but also the validity of Conservatorship
of S.A.[, supra,] 25 Cal.App.5th 438,” L.P. does not actually raise legal
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questions or disagree with Conservatorship of S.A.’s holding that the business
records exception to the hearsay rule applied to hospital records containing
statements that were either “ ‘clearly the reports of persons and staff . . . who
are reporting [conservatee’s] observed conduct’ ” or “ ‘obviously the
observations . . . of the people in the psychiatric program.’ ” (See id. at p.
448.) Rather, L.P. argues that certain specific statements in the records at
issue here were impermissible expert opinion, or that for certain
observations, the records did not make clear who was the specific observer or
the date of the observation. These highly factual questions about the specific
statements at issue in this case are not questions of “broad public interest
that [are] likely to recur” that would warrant an exercise of our discretion to
reach the merits.
DISPOSITION
The appeal is dismissed.
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Miller, J.
_________________________
Mayfield, J. *
Public Guardian of Contra Costa County . L.P.(A163630)
*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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