Conservatorship of Bergantino

Filed 8/27/09 Conservatorship of Bergantino CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Michael Levanas, Judge. Affirmed.

Leonard D. Bergantino, in pro. per., for Objector and Appellant.

Barbara Tyson, in pro. per., for Petitioner and Respondent.

_____________________________

The probate court entered a judgment removing a joint conservators authority to make educational and medical decisions on the conservatees behalf. The joint conservator appeals. We affirm the probate courts judgment.

FACTS

Leonard Bergantino and Barbara Tyson are the parents of Alexander Bergantino (Alex), born in February 1981. Alex has been mentally and physically disabled all his life. In November 1999, shortly after Alexs 18th birthday, the probate court appointed Bergantino and Tyson as joint conservators over Alexs person.

In March 2006, Tyson filed a petition to be appointed Alexs sole and exclusive conservator. In a declaration which accompanied her petition, Tyson alleged that it had become next to impossible to provide joint care for Alex due to Bergantinos ongoing interference with Alexs medical treatment and schooling. More specifically, Tyson claimed that Bergantinos extreme paranoia [was] a serious danger to Alex; and that Bergantinos interference with the medical treatment of Alexs seizure disorder [was] a serious threat to Alexs physical well-being, and that Bergantinos interference with Alexs schooling [was] not in Alexs best interest.

On June 9, 2006, the probate court entered orders amending and modifying its original (November 1999) conservatorship orders based on stipulated terms worked out between Tyson and Bergantino. The modified conservatorship orders set forth specific custody, visitation and vacation schedules, but otherwise provided that Bergantino and Tyson would remain joint conservators over Alexs person.

On July 12, 2006, Tyson filed an ex parte application seeking further modification of the joint conservatorship over Alex on the ground that Bergantino had started causing problems at Canyon Verde, Alexs day program, by accusing its staff of sexual abuse. Tyson asked the probate court to modify its then-existing joint conservatorship orders to give her sole authority to make all educational and medical decisions for Alex. Bergantino responded with his own request to the probate court that he be given sole decision-making authority regarding Alexs educational and medical issues.

At a series of hearings between May 2006 and March 2007, the probate court heard extensive testimony from Tyson and Bergantino and others regarding Alexs needs and ongoing care. At a hearing on March 2, 2007, Tysons counsel, joined by Alexs counsel, asked the court to address whether Bergantino should be removed as a joint conservator over Alexs person, not simply restricted from making educational and medical decisions for Alex. The court requested, and subsequently received, briefs on the issue.

On May 24, 2007, the probate court entered a lengthy statement of decision setting forth its reasons for granting Tyson exclusive authority to make all decisions relating to Alexs educational and medical issues. Broadly summarizing its findings and decision, the court found that allowing Tyson and Bergantino to continue sharing decision-making authority would only invite further disputes and litigation while Alexs needs go unmet or are postponed while the fight rages on, and that Tyson had presented substantial and credible evidence that . . . Bergantino . . . is impossible to work with. The court found that the testimony of other witnesses supported Tysons position. With regard to Alexs schooling, the court expressly found that Bergantino made an agreement for Alex to stay at [Canyon Verde] school and then, within days, did a complete 180-degree turnabout and immediately engaged in a campaign to attack the teachers and the school. The court found that Bergantinos unrelenting pursuit to discredit Canyon Verde had caused the school to ask that Alex leave the program, and that, [s]ince that date, for nine months, Alex [had] not been enrolled in a day program specifically designed to accommodate the needs, interests, talents, and abilities of special need adults. The court found the result of Bergantinos personal and vicious campaign against . . . Canyon Verde is that Alex . . . had to leave the school in which he was flourishing at. Although the remainder of the courts statement of decision is filled with similar findings, the court decided to allow Bergantino to remain as a joint conservator, subject to Tysons authority over Alexs medical and educational needs.

On June 13, 2007, the probate court entered a judgment ordering that Tyson shall have sole and exclusive power to make all decisions regarding Alexs educational and medical issues.

Bergantino filed a timely notice of appeal.

DISCUSSION

A. Appellants Facts

Bergantino (in pro. per. on appeal) explains the history of this case by referring to a letter which he wrote in February 2008 to one William Byers, identified as Chairperson Committee of Friends of Congressman Phil Hair, Rock Island, Illinois. According to Bergantino, the letter (a copy of which he includes in his opening brief) is the best out-line of [the] entire history of this case ever written by [him] and [is] substantive proof of Call Dill. The letter itself provides in part:

NEEDS AND WANTS WITH IMMEDIACY!

1. [I] Need to know whether it was Judge Michael Levanas, Judge [A.B.], or Judge [F.R.] that made the Call Dill and ON WHAT DATE IT WAS MADE. *****THIS IS THE ONLY WAY I CAN ACCURATELY PLACE IN TIME THE EXTENT OF THE CIVIL RIGHTS VIOLATIONS I HAVE BEEN RAPED OUT OF AND THAT HAVE BEEN PERPETRATED UPON ME.

2. I need the tails to remain off of my automobile and any tracking devices removed from my car. I have had a perfect driving record since I was sixteen years old and after receiving a letter from a Princess Tara telling me of all the accidents that were going to befall me in March, 2000 I was hit from behind on August 17, 2000 while I was parked at a stoplight for ten second[s]; in October 2002 from behind; on February 3, 2003 when the woman who hit me from behind while I was driving at about 35 miles an hour gunned it and drove me another 100 feet; and the last one being December 31, 2007 when I was hit [w]hile stopped at a stoplight. Each of these has added an extra permanent disability and permanent nerve damage to parts of my body. I have reason to strongly believe Judge [F.R.] was behind all of this misfortune, regardless of who made the Call Dill. 

B. Appellants Legal Argument

The first page of Bergantinos legal arguments on appeal reads as follows:

I, DR. LEN BERGANTINO, DECLARE, THAT MY INTENTION IS TO CITE TRANSCRIPTS WHEREBY THE TESTIMONY WILL ARGUE ITSELF AND SPACE CAN BE SAVED IN TERMS OF PAGES SUBMITTED.

JULY 27, 2006 TRANSCRIPT. p. 30 line 1 Aty. Mannis Dr. Bergantino has once again brought Alex to Court. (Alex is a brain damaged conservatee. Line 23 The Court Well, anybody that may be a witness is to step outside (je= judicial error). P. 31-line 20-NOW ON CALENDAR AS 502 line 22 TO REMOVE JOSEPH MANNIS BASED ON CONFLICT. A=argument. Mannis is law partner of my ex lawyer Neal Hersh. WHEN DOES CLIENT PRIVILEGE END? NEVER! Je=jud. error. P 32 1 20 Noncompliance with CA rule of Court 312 (A) does not justify something that stinks on its face! P 34 1 3+4 SO I NEVER KNOW WHAT YOU HAVE YET Sal, clerk, withheld giving Levanas the paperwork he was supposed to have read before 27, 2006. Room 258 was doing dirty deals from the getgo (Sandra Riley) (complained to Judge Charles McCoy. He referred to judicial commission. They responded to CALL DI and let all judicial criminal behavior go.

******PROOF on page 35 P. 1 THE COURT LET ME ASK BOTH --DR. BERGANTINO AND COUNSEL IF THE - - IF EACH OF YOU WILL STIPULATE THAT THE COURT CAN RECEIVE AND CONSIDER ALL THE DECLARATIONS SUBMITTED, IM HAPPY TO DO THAT. HOWEVER, I WILL NEED A STIPULATION FROM BOTH PARTIES. Lines 13-15 BUT I HAVE NO OBJECTION TO YOU ACCEPTING ALL THE DECLARATIONS FROM EVERYBODY (Except Langdon). L 16 Mannis: SO STIPULATED, YOUR HONOR. THERE IT IS. I HAD Lisa Bergantinos Sept. 22, 1999; Gilbert Callis, M.D. 6/3/06; Steven Popkow, M.D. 6/18/06; Janet Refoa, DDS 6/18/06; Mr. CLare Ingram Alexs teacher. P. 35 lines 4-6 THE COURT: HOWEVER, I WILL NEED A STIP FROM BOTH PARTIES. OTHERWISE, I NEED TO DECIDE THIS CASE BASED ON TESTIMONY. Levanas ruled this evidence was hearsay throughout nearly all of the witnesses preventing me from properly examining and cross examining anyone. This alone is grounds for a new trial.

The remainder of Bergantinos opening brief, and an emergency addendum to his opening brief, and his reply brief, are similar in nature.

C. Appellants Legal Authorities

Bergantinos table of authorities in his opening brief includes the following:

1. I AM MY OWN AUTHORITY.  [] . . . []

9. YOU DONT SPLIT A LOG WITH A WEDGE Wilfred Bion, Psychoanalyst [] . . . []

12. YOU CAN DO ANYTHING AS LONG AS YOU KNOW HOW TO TAKE THE NEXT STEP. Erv Polster, Ph.D.

In a later filed EMERGENCY ADDENDUM (REGARDING FOUL PLAY), Bergantino cites extensively to John Grishams novel, The Appeal.

D. Analysis

When a judgment or order of a lower court comes to our court on appeal, we are required to presume that the judgment or order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) For this reason, an appellant has the burden to demonstrate to us that the lower court committed an error, which is accomplished by reasoned argument, citation to the record, and discussion of legal authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) Bergantinos submissions on appeal simply have not demonstrated to us that the trial courts judgment and orders are infected with error, and, for this reason, his appeal must be denied.

Separate and apart from denying Bergantinos appeal based on the shortcomings of his own arguments, we further affirm the probate courts judgment and orders for the reasons explained in the respondents brief submitted by Tyson. As Tyson correctly explains: (1) the probate court has the discretion to modify a conservators powers in the best interests of the conservatee (Prob. Code,  2351; see also Guardianship of Reynolds (1943) 60 Cal.App.2d 669); and (2) the probate court in this case did not abuse its discretion by modifying the original terms of the conservatorship. The evidence in the record supports the probate courts conclusions that joint decision-making was unworkable, and that, as between Bergantino and Tyson, Alexs best interests will be served by having the latter make decisions regarding his educational and medical issues. In short, we are satisfied that the probate courts orders must be affirmed because they are reasonable and necessary to provide for Alexs ongoing care and well-being.

DISPOSITION

The judgment is affirmed. Respondent is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

FLIER, Acting P. J.

BENDIX, J.*

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* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.