Date: 07-23-2018

Case Style: Conservatorship of the Person of S.A., Public Guardian of the County of San Luis Obispo v. S.A., Objector and Appellant

Case Number: B284312

Judge: Tangeman

Court: California Court of Appeals Second Appellate District Division Six on appeal from the Superior Court, San Luis Obispo County

Plaintiff's Attorney: Rita L. Neal

Defendant's Attorney: Julia K Freis

Description: 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 All statutory references are to the Welfare and
Institutions Code unless otherwise stated.
3
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.
4
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
5
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.
6
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
7
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),
8
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
9
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
10
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
11
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
12
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
13
“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.

Outcome: The order is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: