Filed 4/13/21 Conservatorship and Estate of S.V. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION 4

S.V. was found to be gravely disabled following a court trial under the Lanterman-Petris-Short (LPS) Act. (See Welf. & Inst. Code, § 5000 et seq.; all statutory references are to the Welf. & Inst. Code.) The court appointed the Contra Costa County Public Guardian as his conservator and determined that his current placement in a locked facility was the least restrictive and most appropriate placement. S.V. raises two arguments in this appeal: first, that the court violated his equal protection rights by compelling him to testify in his commitment trial, and second, that his trial was delayed without good cause and in violation of statutory time limits. As both parties agree, the claims are moot. We will accordingly dismiss the case, choosing not to exercise our discretion to address the issues S.V. raises because other appellate courts have done so.

BACKGROUND

On June 14, 2019, the Contra Costa County Deputy Conservator for the Office of the Public Guardian filed a petition seeking reappointment of a conservator for S.V. pursuant to sections 5361 and 5362. On July 9, 2019, at the request of S.V.’s counsel, the court set S.V.’s trial for July 30, 2019. S.V.’s attorney acknowledged “it would be on a time-waived posture.” The court confirmed the July 30 trial date on July 16 at a readiness conference.

On July 30, the court prioritized a different conservatorship trial instead, one in which S.V.’s counsel also represented a woman the court called “Ms. Conservator.” S.V.’s counsel objected to prioritizing Ms. Conservator over S.V. because his female client did not want to come to trial and was voluntarily staying at the hospital, whereas S.V. wanted to come to trial and did not wish to remain involuntarily confined. County counsel had not prepared for S.V.’s trial however, on the understanding Ms. Conservator’s matter took priority. All parties were prepared to move forward with Ms. Conservator’s trial, and since her temporary conservatorship had expired and she could at any point “leave the hospital to her detriment,” the court prioritized her trial.

With the court and counsel occupied on Ms. Conservator’s case, the court found good cause to reschedule S.V.’s trial for August 6, 2019. Counsel for S.V. objected to the continuance. Then on August 6, the court began a different conservatorship trial and once again continued S.V.’s trial, this time to August 13 and without objection from S.V.’s counsel.

A jury panel could not be secured for trial on August 13 so S.V. decided to waive his right to a jury and have the court hear the matter that day. S.V.’s attorney made a pretrial motion to prohibit the compelled testimony of S.V., which the court denied, after which county counsel called S.V. to testify over his counsel’s objection. In brief, S.V. testified that he knew he had been diagnosed with schizophrenia but did not agree with the diagnosis, did not believe he had a mental illness, and would not seek treatment on his own for mental illness.

The county also called Dr. Michael Levin, qualified as an expert in psychiatry and grave disability, who testified that S.V. suffered from schizophrenia. Dr. Levin based his diagnosis and testimony on two meetings with S.V., one in 2017 and one in 2019 prior to the trial, and a review of S.V.’s records dating back 16 or 17 years. S.V. continued to show several signs of mental illness; in their 2019 meeting he was nonverbal or intermittently verbal, was non-responsive to questions, and would make “wild gestures” as if responding to auditory or visual hallucinations. Dr. Levin further testified that S.V. had to be given dietary supplements because S.V. did not always eat and had lost weight. S.V. showed negative symptoms of schizophrenia such as having a blunted affect and having little interest in activities. S.V. was taking several medications: Clozaril, which required regular monitoring of his white blood cell count, Depakote, for mood stabilization, and Remeron, an antidepressant. S.V. needed regular prompting to keep up with his medications. Dr. Levin finally concluded that S.V. was gravely disabled and would have a difficult time getting his needs met in any setting other than a locked facility.

At the end of the trial, the court found beyond a reasonable doubt that S.V. was gravely disabled and unable to provide for his own basic needs, and that his current facility was the least restrictive means available for meeting his needs.

S.V. filed a timely notice of appeal on August 20, 2019. Since the filing of this appeal S.V. has been recommitted, and a new petition is pending on appeal in that case (Conservatorship of S.V. (A160989, app. pending)).

DISCUSSION

A person is considered “ ‘gravely disabled’ ” and may be placed in an LPS conservatorship when he or she, “as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).) The court may appoint a conservator to provide individualized treatment, supervision, and placement to someone who is gravely disabled. (§ 5350.1.) Such conservatorship automatically expires after one year. (§ 5361.) S.V. contends that he should not have been compelled to testify during his conservatorship trial because he is similarly situated to other persons subject to involuntary civil commitment who are not compelled to testify, and also that the court violated statutory time limits because more than 15 days passed between the filing of the petition seeking a renewed conservatorship and the court trial determining the matter. Although we recognize the importance of the legal issues S.V. argues, we will dismiss this case as moot.

As a general rule, it is a court’s duty to decide “ ‘ “actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” ’ ” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’ ” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.) Here, the conservatorship S.V. appeals has expired, S.V. has been recommitted as a result of a new conservatorship trial in September 2020, and no remedy in this case can affect the outcome of S.V.’s current conservatorship. The case is accordingly moot.

It is true that “the general rule regarding mootness ‘is tempered by the court’s discretionary authority to decide moot issues.’ ” (People v. Pipkin (2018) 27 Cal.App.5th 1146, 1150.) “f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.” ([i]In re William M. (1970) 3 Cal.3d 16, 23.) Courts may choose to exercise this discretion when the recurring issue is an important one that may otherwise evade review. (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 511.) But neither of the issues S.V. raises are evading review.

I. Compelled Testimony

S.V. advances the argument that an LPS conservatee is similarly situated to someone found not guilty by reason of insanity (NGI) for purposes of preventing compelled testimony during a commitment proceeding. Our Supreme Court held in Hudec v. Superior Court (2015) 60 Cal.4th 815, 818, that an NGI committee has a statutory right not to testify in a civil proceeding seeking to extend his or her involuntary commitment. Subsequent court of appeal decisions extended the right not to testify in a civil commitment proceeding to those on trial as sexually violent predators (SVP’s) (People v. Curlee (2015) 237 Cal.App.4th 709, 718) or mentally disordered offenders (MDO’s) (People v. Dunley (2016) 247 Cal.App.4th 1438, 1450) on the theory such persons were similarly situated to NGI committees and, under equal protection principles, should enjoy the same right not to testify.

As for whether these equal protection principles should extend to prospective LPS conservatees, three other divisions in this district have already decided the very issue S.V. raises. In Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 198, Division One of our court held that LPS conservatees were not similarly situated to NGI’s, SVP’s, or MDO’s for the purposes of compelled testimony because they lacked the same connection to the criminal justice system. Two other divisions of our court promptly disagreed, concluding prospective LPS conservatees are similarly situated to NGI’s, SVP’s, and MDO’s, “at least for the purpose of the testimonial privilege.” (Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 993, 997, review granted June 24, 2020, S261812; see also Conservatorship of J.Y. (2020) 49 Cal.App.5th 220, 231, review granted Aug. 19, 2020, S263044.)

This issue may be one of general public interest and capable of recurring although moot, in that “ ‘a conservatorship is relatively brief (one year) in comparison with the appellate process.’ ” (Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 961.) But the issue has received recent attention from our court and is currently pending before the California Supreme Court, so it could hardly be characterized as “perpetually evad[ing] appellate scrutiny.” (Ibid.) For this reason, we decline to exercise our discretion to decide the constitutional question here, where it is already moot.

II. Timeliness

A proposed LPS conservatee has the right to demand a court or jury trial, which “shall commence within 10 days of the date of the demand.” (§ 5350, subd. (d)(2).) At the request of counsel for the proposed conservatee, the court “shall continue the trial date for a period not to exceed 15 days.” (§ 5350, subd. (d)(2).) S.V. contends that his trial was continued beyond the statutory time limit without good cause, and that this is a common occurrence in LPS cases.

The importance of timely trials in LPS cases has also drawn recent attention from the appellate court, in Conservatorship of Jose B. (2020) 50 Cal.App.5th 963 (Jose B.). There, the Public Guardian filed a petition to renew Jose B.’s conservatorship, alleging he was gravely disabled due to schizophrenia. (Id. at pp. 967–968.) Jose B. demanded a jury trial, and following several continuances, the trial court eventually set trial 137 days later, without explanation for the delay. (Id. at pp. 967–969.) The court considered whether the delay required dismissal of the conservatorship petition but decided it did not. (Id. at p. 967.) Because section 5350 subdivision (d)(2) specifies a time limit but does not specify a penalty for exceeding the time limit, Jose B. held that the court need not dismiss a case that exceeds the time limits. (Jose B., at pp. 971–972.) But the court emphasized that just because the Legislature had not “expressly provided” a penalty for failure to follow established time limits “does not mean trial courts should blithely continue conservatorship trials for their judicial convenience.” (Id. at p. 967.) The court noted the delay did not prejudice Jose B. but added that “f a proposed conservatee contends he or she has been prejudiced by the delay, the proper remedy is to file a motion to dismiss for lack of a speedy trial.” ([i]Ibid.)

Like the court in Jose B., we are “deeply troubled by the significant delay” in LPS conservatorship trials and take this opportunity to “emphasize the statutory obligation of trial courts to hold a jury trial within 10 days.” (Jose B., supra, 50 Cal.App.5th at p. 967.) But here, we note the trial court found good cause for the first delay, to prioritize another LPS conservatee whose temporary conservatorship had already expired, and counsel made no objection to the second delay. If S.V. was prejudiced by either delay, counsel could have filed a motion to dismiss, but he did not. (See Jose B., at p. 967.) Counsel might also have filed in this court a petition for a writ of mandate to direct the trial court to adhere to statutory time limits. (See In re D.P. (2018) 21 Cal.App.5th 154, 165 [“ ‘Statutory time limits . . . may be enforced by a writ of mandate compelling the [court] to act’ ”].) Neither of these avenues was pursued, which only confirms our view that we should decline to exercise our discretion to address the admittedly moot timeliness issue S.V. raises.

DISPOSITION

The appeal is dismissed as moot.

TUCHER, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

Conservatorship of the Person and Estate of S.V.. (A158326)