Conservatorship of Maria M.

Filed 7/26/06 Conservatorship of Maria M. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Browder Willis III, Judge. Reversed and remanded.

Conservatee Maria M. appeals the order reestablishing her Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5000 et seq.) conservatorship and reappointing the public conservator (a division of respondent San Diego County Health and Human Services Agency). Her opening brief contends she was denied due process because she was not present at the reestablishment hearing, there is no assurance she knew of it and waived her presence, there is no showing her attorney communicated with her or discussed the case with the doctors, and the doctors' declaration is cursory.^[1] Maria M.'s counsel and respondent's counsel have filed a joint application and stipulation "to vacate judgment and settle appeal and to remand action to the San Diego County Superior Court for further proceedings." We accept the stipulation (Code Civ. Proc., § 128, subd. (a)(8)) and reverse.

BACKGROUND

On October 13, 2005, the public conservator served by mail a petition to reestablish conservatorship of the person and a notice of hearing and citation to appear in court for a November 22 hearing. These documents were sent to Maria M. in care of the board and care home where she apparently resides. On October 14, the public conservator filed the petition with the court. On November 21, the deputy public defender representing Maria M. filed a declaration stipulating to reestablishment of the conservatorship. The declaration stated that the deputy public defender "discussed [Maria M.'s] condition with . . . the doctor's medical declaration [sic] [and] the staff at the facility, who recommend reestablishment"; Maria M.'s "present condition is such that she is incapable of understanding, consenting, or objecting to the reestablishment"; and there is "no purpose in a formal court hearing." On November 22, in Maria M.'s absence, the court accepted the stipulation and ordered the conservatorship reestablished. On November 23, the order was served by mail on Maria M. On December 6, she filed a notice of appeal.

According to the declaration of Maria M.'s deputy public defender, filed with the joint application and stipulation, she has been assigned to represent Maria M. in the conservatorship matter since 2000; since then, they have had several personal meetings; the deputy public defender called to meet with Maria M. on November 18, 2005, regarding reestablishment of the conservatorship, but was told that Maria M. was on a family outing; and based on the declaration of Maria M.'s doctor, discussions with the manager of Maria M.'s board and care facility, and her own knowledge of Maria M., the deputy public defender decided not to request a hearing on the petition.

According to the parties' joint application and stipulation, on remand to schedule a new reestablishment hearing, the deputy public defender will comply with applicable local rules of the Superior Court of San Diego County, and personally contact Maria M. to discuss the conservatorship reestablishment hearing.^[2] The parties claim that "[s]ettling the appeal will place the parties in essentially the same position as if the appeal was prosecuted to completion and [Maria M.] prevailed," this will conserve judicial resources by avoiding further briefing and this court's review of the record, and the relief sought is consistent with Maria M.'s rights and privileges under the LPS Act and local rules. The joint application and stipulation also requests that the remittitur issue forthwith and there be no award of costs.

DISCUSSION

"An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement." ( Code Civ. Proc., § 128, subd. (a)(8).)

Our independent review of the record, summarized above, leads us to conclude that we should accept the stipulation. First, there is no reasonable possibility that reversal will adversely affect the interests of nonparties or the public, as this case concerns only Maria M.'s conservatorship. Second, the reason the parties request reversal is to allow compliance with applicable law. Because a stipulated reversal will remedy any noncompliance, the public trust will not be eroded. On the contrary, public trust in the courts and their judgments will be advanced by knowing that the public conservator, counsel, and the courts will seek to correct errors promptly and reasonably and protect the rights of conservatees. Nor will reversal run the risk of reducing any incentive for pretrial settlement.

DISPOSITION

The order reestablishing the conservatorship is reversed. This matter is remanded to the superior court, with directions that it (1) set a new hearing regarding reestablishment of the conservatorship, and (2) ensure compliance with applicable law, including its own local rules. The remittitur is to issue forthwith. The parties shall bear their own costs.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] Specifically, Maria M. notes that the doctors' declaration does not state they personally examined her, specify that they are both doctors of medicine, or provide their telephone numbers.

^[2] The Superior Court of San Diego County, Local Rules, rule 8.2.13 states: "At any conservatorship hearing conducted under Division 8, Chapter 2, the Mental Health Court may, in its discretion, proceed in the absence of the conservatee if counsel for the conservatee: (1) requests the court to waive the conservatee's presence, (2) represents to the court that there has been contact with the conservatee, and (3) states that, in the attorney's opinion, it is not in the best interests of the conservatee-client to be present in court or for the court to convene where the conservatee is then housed."