Conservatorship of the Person of G.H.: On Appeal, Probate Court Order Reversed

C.A. 6th;
H038826
The Sixth Appellate District reversed a probate court order reappointing a conservator under the Lanterman-Petris-Short Act. The court held that the probate court exceeded its authority in granting a conservator’s petition for reappointment as a sanction for the conservatee’s refusal to submit to a mental examination in the absence of a court order compelling such an examination.

In 1998, the Santa Clara County Superior Court established a conservatorship over G.H.’s person pursuant to the Lanterman-Petris-Short (LPS) Act. G.H. was thereafter under continuous conservatorship.

In March 2012, the Santa Clara County 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.

The trial court set the matter for an evidentiary hearing on May 9.

On May 9, 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.

At a continued hearing on May 25, G.H. again failed to appear in court. The Public Guardian informed the court that G.H. had again refused to submit to examination.

The probate court thereafter granted the Public Guardian’s request for a discovery sanction and granted the reappointment petition. In its written order, the court explained that G.H.’s failure to submit to a mental examination with the Public Guardian’s doctor authorized the court to impose an evidence or terminating sanction pursuant to Code Civ. Proc. §2032.410. The court found that G.H., as a consequence of his repeated non-compliance, had forsaken his right to an evidentiary hearing.

The court of appeal reversed, holding that, in the absence of a court order compelling G.H. to submit to an examination, his refusal to do so did not give the probate court authority to issue a terminating sanction.

Section 2032.410 states: “If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction....” The problem here, the court explained, was that G.H. was never required to submit to an examination.

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Conservatorship of the Person of G.H.