Conservatorship and Estate of T.J. CA2/6

Filed 1/21/22 Conservatorship and Estate of T.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B311896
and Estate of T.J. (Super. Ct. No. PS008295)
(Ventura County)
PUBLIC GUARDIAN OF
COUNTY OF VENTURA, as
Conservator, etc.
Petitioner and Respondent,
v.
T.J.,
Objector and Appellant.
T.J. appeals from the denial of his petition for
rehearing challenging the trial court’s determination that he
remains gravely disabled within the meaning of the
Lanterman-Petris-Short (LPS) Act. (Welf. & Inst. Code,1 § 5000
et seq.) He contends: (1) he made a prima facie showing that he
is no longer gravely disabled, and (2) the dismissal of his
rehearing petition violated his due process rights. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The Ventura County Public Guardian has been T.J.’s
conservator since September 1999. In September 2020, T.J.
admitted that he fell within the provisions of the LPS Act and
submitted to the Public Guardian’s one-year reappointment as
his conservator.2 T.J. later decided to challenge his
conservatorship in a petition for rehearing, which he filed in
February 2021.
At the hearing on the petition, T.J. testified that his
plan for housing was to “continue looking for a place to live.” He
said that he knew of an apartment on Main Street but had not
yet contacted the owner. When asked if he had done anything
besides identify that apartment, T.J. replied, “A brand new
refrigerator as well as a brand new bed and used chairs.
Everything from the Goodwill.” He said he would remain at the
boarding facility where the Public Guardian had placed him until
he found a suitable apartment. He said that he would continue
to search for housing if the Main Street apartment did not work
out.
1 Unlabeled statutory references are to the Welfare and
Institutions Code.
2 Given that conservatorships automatically terminate
after one year, T.J.’s appeal is technically moot. (Conservatorship
of Manton (1985) 39 Cal.3d 645, 647, fn. 1.) But because the
issues raised by the appeal are “of general interest and likely to
reappear in the future, resolution is appropriate.” (Ibid.)
2
T.J. testified that he had not managed his own bills
for 10 or 15 years. He said that he earned about $1100 in
monthly Social Security income, $600 of which he planned to
spend on rent. He estimated that he would also spend $200 to
$400 per month on clothing and $200 to $300 per month on food.
Prior to cross-examination, the trial court asked
whether anything had changed since T.J.’s most recent
conservatorship extension. T.J. replied, “Because I feel together.
I feel right in the middle. My medication helps me, so it slows me
down so I can think quicker. I don’t look good, but mentally I’m
just fine. As long as the brain is in order, the whole body will be
in order and so will everything else.”
At the conclusion of his testimony the trial court
concluded that T.J. had not made a prima facie showing that he
is no longer gravely disabled. T.J. showed that “he would like to
get off conservatorship” and had “some ideas about how he would
go about doing that.” But he had not shown that his ideas were
viable: He did not know if the Main Street apartment owner
would accept him as a tenant, or what its monthly rent would be.
And he had not shown that his Social Security income would pay
for “food, [housing], clothing, [and] medication.” He thus failed to
show that a change in circumstances warranted ending his
conservatorship.
DISCUSSION
Prima facie showing
T.J. contends the trial court erred when it
determined that he failed to make a prima facie showing that he
is no longer gravely disabled. We disagree.
Under the LPS Act, a conservatee may petition for
rehearing as to their status as a conservatee. (Welf. & Inst.
3
Code, § 5364.) During the hearing on that petition, the
conservatee bears the burden of proving, by a preponderance of
the evidence, that they are no longer gravely disabled.
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541; see also
Conservatorship of Everette M. (1990) 219 Cal.App.3d 1567, 1573
(Everette M.) [at rehearing, conservatee must show that their
“‘situation has changed so that [they are] no longer gravely
disabled’”].) A conservatee is “gravely disabled” if they are
unable to provide for their basic needs of food, clothing, and
housing due to a mental disorder. (§ 5008, subd. (h)(1)(A).)
1. Standard of review
The resolution of this case hinges on the standard of
review. T.J. argues we should apply the standard of review for a
judgment following a motion for nonsuit, while the Public
Guardian argues the substantial evidence standard controls. The
Public Guardian is correct.
A motion for nonsuit is available after the plaintiff’s
presentation of evidence in a jury trial. (Code Civ. Proc., § 581c,
subd. (a).) When deciding whether to grant such a motion, the
court does not weigh the evidence but instead gives the
“‘plaintiff’s evidence all the value to which it is legally entitled.’”
(Everette M., supra, 219 Cal.App.3d at p. 1572.) In contrast, after
the plaintiff has presented evidence in a court trial, the other
party may move for judgment, and the court then “weigh[s] the
evidence” and determine[s] whether to grant the motion. (Code
Civ. Proc., § 631.8.)
Here, the record shows that the trial court weighed
the evidence and determined that T.J. failed to carry his burden.
The court properly applied the standard for a motion for
judgment. Substantial evidence review accordingly applies here.
4
(San Diego Metropolitan Transit Development Bd. v. Handlery
Hotel, Inc. (1999) 73 Cal.App.4th 517, 528 [review of motion for
judgment]; Conservatorship of Johnson (1991) 235 Cal.App.3d
693, 697 [review of rehearing petition contesting
conservatorship].)
2. Analysis
Substantial evidence supports the trial court’s
finding that T.J. did not prove a prima facie case that he is no
longer gravely disabled. When the court asked T.J. what had
changed since the Public Guardian’s reappointment as his
conservator, T.J. did not answer the court’s question, but instead
replied that he felt “together” and was “mentally . . . fine.” He
had an idea of how he would spend his monthly income, but
speculated as to how much he would need to spend on food,
clothing, and housing. Speculation is not evidence. (People v.
Dennis (1998) 17 Cal.4th 468, 508.)
This case is unlike Everette M., supra, 219
Cal.App.3d 1567, on which T.J. relies. In that case, the
conservatee “was able to establish the existence of a monthly
income and furnish a budget [that] would fit within that income.”
(Id. at pp. 1573-1574.) There was no evidence that the furnished
budget was “unreasonable.” (Id. at p. 1574.) The conservatee
also had an “established . . . employment history, and testified
[that] he would seek further employment to assist in meeting his
budgetary needs.” (Ibid.) Most significantly, he showed that he
could rely on third parties for assistance should he struggle
financially. (Id. at p. 1573.) Such evidence established a prima
facie case that the conservatee’s “condition had changed to the
extent that he [was] . . . able to provide for his necessities.” (Id.
at p. 1574.)
5
Here, in contrast, T.J. did not establish that his
proposed budget was reasonable. Unlike the Everette M.
conservatee’s budget, which was based on past experience
(Everette M., supra, 219 Cal.App.3d at p. 1574), T.J.’s was based
on speculation. Most importantly, he provided no evidence about
whether he could rely on others if he faced financial problems, or
how he could provide for his basic needs in that event. Everette
M. thus does not support T.J.’s contention that he showed that he
is no longer gravely disabled.
Due process
Alternatively, T.J. contends the trial court’s dismissal
of his rehearing petition violated due process. To evaluate this
contention, we balance “the private interests at stake, the state
or public interests, and the risk that the procedure or its absence
will lead to erroneous decisions.” (Conservatorship of John
L. (2010) 48 Cal.4th 131, 150.)
In his opening brief, T.J. does not even mention this
balancing test. “[C]onclusory arguments that are not supported
by pertinent legal authority or [that] fail to disclose the reasoning
by which the appellant reached the conclusions [they] want[] us
to adopt” do not warrant reversal on appeal. (City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) T.J. does apply
the balancing test in his reply brief, but that analysis is untimely
and will be disregarded. (WorldMark, The Club v. Wyndham
Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn.
7.) In any event, T.J. has not shown that the balancing of the
three relevant interests weighs in favor of a finding a due process
violation.
6
DISPOSITION
The trial court’s order denying T.J.’s petition for
rehearing, entered March 11, 2021, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Elizabeth West, Temporary Judge
(Pursuant to Cal. Const., art. VI, § 21.)
Superior Court County of Ventura
______________________________
Claudia Y. Bautista, Public Defender, Michael C.
McMahon and Efan Wu, Deputy Public Defenders, for Objector
and Appellant.
Tiffany N. North, County Counsel, Mitchell B. Davis,
Assistant County Counsel, for Petitioner and Respondent.