Santa Clara County Office of Public Guardian v. G.H.

Filed 7/17/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Conservatorship of the Person of G.H. H038826 (Santa Clara County Super. Ct. No. 1-78 MH025600)

SANTA CLARA COUNTY PUBLIC GUARDIAN’S OFFICE,

Plaintiff and Respondents,

v.

G.H.,

Defendant and Appellant.

G.H. appeals from an order reappointing a conservator of his person under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.). His appeal calls upon us to address the question of whether the trial court can impose a terminating sanction, pursuant to Code of Civil Procedure section 2032.410, against a proposed LPS conservatee in the absence of a court order requiring a mental examination of the proposed conservatee.1

1 After the parties completed briefing in this matter, G.H.’s counsel informed this court that G.H. died on April 19, 2014. His death during the pendency of the appeal abates all further proceedings in the case. (People v. Her (2013) 216 Cal.App.4th 977, 979, fn 1.) However, we exercise our inherent authority to retain the appeal for issuance of an opinion because it raises an important issue of public interest that is likely to recur in other cases. (See, e.g., People v. Nottoli (2011) 199 Cal.App.4th 531, 535, fn 3.)

BACKGROUND In 1998, the Santa Clara County Superior Court established a conservatorship over G.H.’s person pursuant to the LPS Act. Since that time, G.H. has been under continuous conservatorship. On March 27, 2012, the Santa Clara County Public Guardian (hereafter “Public Guardian”) filed a petition to be reappointed G.H.’s conservator under the LPS Act. The petition alleged that G.H remained gravely disabled as a result of mental disorder. G.H.’s counsel requested that the matter be set for an evidentiary hearing. The trial court set the evidentiary hearing for May 9, 2012. On May 9, 2012, G.H. was not present in court. The Public Guardian explained that G.H. had refused to submit to a mental examination with the Public Guardian’s doctor, and that it did not intend to transport G.H to court unless G.H. submitted to the mental examination. G.H.’s counsel requested that the evidentiary hearing on the reappointment petition be continued, and he also requested that G.H be transported to court for the evidentiary hearing. The Public Guardian asserted that G.H.’s failure to submit to a mental examination was a discovery violation, that the appropriate sanction for such a discovery violation was to deny G.H. an evidentiary hearing, and that there would thus be no need to transport G.H. to court if he failed to submit to a mental examination. G.H.’s counsel argued that G.H. had a right to a “contested hearing . . . regardless of whether he agree[d] to see the doctor.” The court issued the following ruling: “I’m going to make two orders. The first is I will continue this evidentiary hearing to May 23[] . . . . I will further order that if [G.H.] does not meet with the doctor prior to that hearing, then there’s no obligation to transport him at that time . . . .” On May 23, 2012, G.H. was absent from court. The Public Guardian explained that G.H. had again refused to submit to a mental examination with the Public Guardian’s doctor. The Public Guardian requested that the court grant the reappointment petition