Conservatorship of Mayo
Filed 7/27/12 Conservatorship of Mayo CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
Conservatorship of the Person
and Estate of Leslie A. Mayo.
DONALD P. MURRAY, as
Conservator, etc., et al.,
Petitioners and Respondents,
v.
RONALD A. MAYO,
Objector and Appellant.
D060703
(Super. Ct. No. 37-2008-00152495-PR-
CP-CTL)
APPEAL from
orders of the Superior Court
of San Diego County,
Julia Craig Kelety, Judge. Appeal
dismissed.
Ronald A. Mayo is the husband of
conservatee Leslie A. Mayo. Leslie's
conservators are her children from an earlier marriage, Donald Preston Murray and
Lee Brooke Murray Roy (together the Conservators). (Throughout this opinion, we refer to these
individuals by their first names as a matter of simplicity and clarity.) Ronald appeals two minute orders issued by
the probate court in this conservatorship proceeding. We conclude that the orders are not
appealable and dismiss the appeal.
FACTUAL
AND PROCEDURAL BACKGROUND
In 2008,
the probate court appointed the Conservators to administer Leslie's person and
estate. In May 2010, the Conservators
filed a petition for exclusive authority to give consent for medical treatment
and provide medications for the purpose of treating dementia. In November 2010, Jerilyn S. Jones, Leslie's
court appointed attorney filed a report recommending that the application be granted. In May 2011, the probate court granted the
Conservators the authority to make medical decisions on Leslie's behalf. (All further dates are in 2011.) This order did not give the Conservators the
authority to place Leslie in a care or nursing facility described in
subdivision (b) of Probate Code section 2356.5.
(Undesignated statutory references are to the Probate Code.)
On June 29,
the Conservators removed Leslie from her home where she lived with Ronald and
moved her to a skilled nursing facility in La Jolla. Dr. R. K. Gundry evaluated Leslie and
concluded that she suffered from dementia.
He noted that she was confused, unable to care for her own toileting
needs, unable to leave the facility unassisted and exhibited wandering
behavior. Four days later, Leslie was
admitted to the UCSD Senior Behavioral Health Inpatient Unit (SBH) through the
emergency room. Dr. Daniel Sewell
diagnosed Leslie with severe dementia and suspected that she was suffering from
alcohol withdrawal. After treating her
with an alcohol withdrawal protocol, "her vital signs and behavioral
problems dramatically improved," suggesting that she had been experiencing
alcohol withdrawal.
Dr. Sewell
noted that Leslie is "unable to reliably indicate her preferences
regarding many aspects of her life," suggested that she be discharged to
Sunrise at La Costa (Sunrise), a residential facility specializing in the care
of dementia patients, and gave a number of examples of why he concluded that
the care Ronald had been providing Leslie was "inadequate, substandard,
inappropriate, and dangerous."
Dr. Sewell concluded that Leslie should "not be returned to
the care or supervision of [Ronald]."
On July 7, the Conservators served notice that they proposed to move
Leslie's residence to a skilled nursing facility, noting that Leslie was
hospitalized through the emergency room and that once her condition was
stabilized, she would be discharged to a skilled nursing facility, not her home
where the condition was created.
Thereafter,
Ronald filed a verified ex parte application for an order instructing the
Conservators that Leslie should be returned to her personal residence, as this
was the least restrictive appropriate residence. The ex parte application did not object to
Leslie's initial move based on improper or inadequate notice.
Lee and Jones filed objections,
under penalty of perjury, to the ex parte application. Jones noted that over the past few months,
she received numerous e-mails from Ronald indicating his "increasing
frustration" with being Leslie's primary caregiver as Leslie's behavior
had become more erratic. Although the
Conservators tried to arrange in-home care for Leslie, Ronald frustrated their
efforts. Jones believed that Leslie
would like to return home, but concluded that she could not "advocate that
[Leslie] return to the negative environment from which she was removed"
and she could not foresee Ronald cooperating with a caregiver.
At the
August 5 hearing on the ex parte application, the probate court denied the
requested relief without prejudice, ordered the Conservators to file a petition
regarding Leslie's placement, and pending further proceedings, authorized that
Leslie be placed in a secured perimeter facility once discharged from SBH. The court also ordered that Ronald not visit
Leslie pending further order of the court or stipulation by the parties. On August 24, the Conservators filed a
postmove notice of change of residence to Sunrise.
At the
September 28 hearing, the court set the matter for "a case management
[conference]" and ordered that Leslie remain in her current
placement. The court suggested that
Ronald be allowed supervised visitation with certain conditions; however, when
Ronald's counsel balked, the court stated that it would continue the no visitation
order pending the outcome of the hearing on the petition. In January 2012, the court entered a
stipulated order regarding Ronald's visitation of Leslie. The order stated that it would remain in
effect pending further order of the court.
Ronald appeals from the August 5 and September 28 minute orders.
DISCUSSION
The
appealability of a judgment or order is jurisdictional. (Marsh
v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (
"There are three categories of appealable judgments or orders: (1) final judgments as determined by case
law, (2) orders and interlocutory judgments made expressly appealable by
statute, and (3) certain judgments and orders that, although they do not
dispose of all issues in the case are considered 'final' for appeal purposes
and are exceptions to the one-final-judgment rule." (Conservatorship
of Rich (1996) 46 Cal.App.4th 1233, 1235.)
The August 5 and September 28
orders are not a final judgment.
Accordingly, we turn to whether the orders fall under the collateral
order exception to the one-final-judgment rule.
Under this exception, "an interim order is appealable if: [¶] 1. The order is collateral to the subject matter
of the litigation, [¶] 2. The
order is final as to the collateral matter, and
[¶] 3. The order directs the payment of money by the
appellant or the performance of an act by or against appellant.
[Citations.]" (Marsh, supra, 43
Cal.App.4th at pp. 297-298.) To the
extent Leslie's placement and Ronald's visitation can be considered as matters
that are collateral to the issue of whether a conservatorship is required, the
orders are not final as to these collateral matters.
At the August 5 hearing, the
probate court denied Ronald's ex parte application without prejudice as
inappropriate for ex parte relief, authorized Leslie's placement at Sunrise
pending a decision on a petition regarding her placement and ordered that
Ronald not visit Leslie pending further order of the court or stipulation by
the parties. Thus, the trial court clearly
contemplated a further hearing on these matters. At the September 28 hearing, the trial court
issued no further orders. Rather, it
maintained the status quo regarding Leslie's placement and Ronald's visitation,
and set the matter for a case management conference to be followed by an
evidentiary hearing. Accordingly, we
turn to the last category of appealable orders, those orders made expressly
appealable by statute.
A party may appeal "[f]rom an
order made appealable by the provisions of the Probate Code." (Code Civ. Proc., § 904.1, subd.
(a)(10).) Section 1300 sets forth
appealable orders in all proceedings under the Probate Code and section 1301
sets forth appealable orders in guardianship and conservatorship proceedings.
Ronald
contends the orders are appealable under subdivision (e) of section 1301 which
allows an appeal to be taken from the grant or refusal to grant any order
"[a]ffecting the [conservatee's] legal capacity of the conservatee
pursuant to Chapter 4 (commencing with Section 1870) of Part 3 of Division
4." We disagree.
The portion
of the Probate Code referenced in subdivision (e) of section 1301 pertains to
the capacity of the conservatee: to bind
the estate in financial transactions (§§ 1870-1876); give informed consent
to medical treatment (§§ 1880-1890); and marry (§§ 1900-1901). Clearly, this matter does not involve
Leslie's capacity regarding financial transactions or to marry. Nor does this matter involve Leslie's
capacity to consent to medical treatment as the probate court decided in May
2011 that the Conservators had the "[e]xclusive authority to give consent
for and to require the conservatee to receive medical treatment." The fact the Conservators may have changed
Leslie's placement while acting under their power to decide Leslie's medical
treatment does not advance Ronald's argument that the orders are appealable
under subdivision (e) of section 1301.
Ronald's
reliance on Conservatorship of Wendland
(2001) 26 Cal.4th 519 (Wendland) is
misplaced. In Wendland, a wife sought to remove the feeding tube of her severely
disabled husband. (Id. at pp. 524-526.) After
this dispute arose, the wife petitioned for appointment as her husband's
conservator. (Id. at p. 526.) In the
petition, she asked the court to determine that her husband "lacked the
capacity to give informed consent for medical treatment and to confirm her
authority 'to withdraw and/or withhold medical treatment and/or life-sustaining
treatment, including, but not limited to, withholding nutrition and hydration.' " (Ibid.) As subdivision (e) of section 1301 provides,
an order pertaining to a conservatee's capacity to consent to medical treatment
is appealable. As such, there is no
discussion regarding appealability in Wendland. Here, however, the August 5 and September 28
orders did not decide a petition regarding a conservatee's capacity to consent
to medical treatment; thus, the orders are not appealable under subdivision (e)
of section 1301.
Ronald also
asserts the orders are appealable under the Code of Civil Procedure as any
order granting or denying an injunction.
(Code Civ. Proc., § 904.1, subd. (a)(6).) This argument, however, ignores the fact that
the probate court did not issue any injunctions at the two hearings. At the August 5 hearing, the Conservators
requested ex parte "restraining orders be put in place so that [Leslie
could] make a transition to Sunrise" and that Ronald not be allowed to
visit for 30 days. However, the trial
court never stated that it granted this request; rather, it stated that it
needed a petition to be filed.
Moreover,
at the September 28 hearing, the probate court specifically noted that it did
not grant a restraining order at the August 5 hearing, that it was not granting
a restraining order, and that it does not "do restraining
orders." When asked about its
authority to dictate Ronald's visitation, the court specified that it was using
its inherent power to make orders regarding conservatees.
Finally, we reject Ronald's
argument that fairness requires that the orders be appealable. First, the parties' stipulation regarding
Ronald's visitation vacated the August 5 visitation order. Thus, the visitation issue is moot pending
further order of the court.
Although not argued by the parties,
we conclude that the orders at issue in this appeal are not appealable as
orders under subdivision (c) of section 1300 because a physician recommended
and the probate court authorized Leslie's placement in a secured facility upon
her release from SBH. In any event, the
Conservators did not require the permission of the probate court to fix
Leslie's place of residence within the state (§ 2352, subd. (a)) and although a
conservator generally requires a court order to authorize placing a conservatee
in a secured perimeter residential care facility for the elderly or a locked
and secured nursing facility for people with dementia (§ 2356.5, subd. (b)),
this provision does not apply in emergency situations (§ 2356.5, subd. (j)).
At the August 5 hearing, the
probate court did not address whether it was faced with an emergency
situation. However, at the September 28
hearing, Leslie's counsel argued that Leslie's current placement should not
change because "an exigent situation" existed regarding Leslie's
care. The probate court agreed, remarking
that a "certain degree of exigency" existed at that time. Notably, to the extent this constitutes a
factual finding by the probate court, Ronald did not challenge it on appeal.
Other than the implied finding
regarding exigency, the probate court made no factual findings at these
hearings. The probate court stated at
the September 28 hearing that it was "not making any orders today. I'm simply setting [a] case management
[conference]. I've made no orders
today." At these hearings, the
probate court recognized that the contested matter presented an unusual
circumstance and tried to guide the matter to where it needed to be
procedurally — an evidentiary hearing on Leslie's placement. (§ 1022 [the Probate Code limits the use of
affidavits to "uncontested proceeding[s]"; Estate of Bennett (2008) 163 Cal.App.4th 1303 [the probate court
commits reversible error in denying the request for an evidentiary hearing
where there are factual conflicts in the parties' competing declarations].)
Accordingly, although Ronald
tenders numerous objections to the admissibility of certain documentary
evidence presented at the hearings, we cannot rule on these objections for the
first time on appeal. Additionally, as a
procedural matter, it is problematic for us to grant Ronald's requested relief,
an order returning Leslie to the home she shared with Ronald, when the probate
court will decide, or has decided, this very issue.
At oral argument, counsel indicated
that a final order has since been issued.
We take judicial notice of the superior court file and note that the
trial court issued an order on April 13, 2012 that stated a secured perimeter
residential care facility was the least restrictive placement for Leslie. This order is appealable (§ 1300, subd. (c));
however, at oral argument, Ronald's counsel stated he would not be appealing
the order. Nonetheless, he urged that we
address the merits of his arguments to benefit future litigants. We decline to do so as what constitutes an
emergency situation sufficient to place a conservatee in a secured perimeter
residential care facility for the elderly is very fact specific.
DISPOSITION
The appeal is dismissed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
