SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES v. VAN ORNUM

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

CONSERVATORSHIP OF the Person of Janice VAN ORNUM. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. Janice VAN ORNUM, Conservatee and Appellant.

D001483.

Decided: December 20, 1984

Christopher Blake, San Diego, for conservatee and appellant. Lloyd M. Harmon, Jr., County Counsel, Howard P. Brody, Chief Deputy County Counsel, and Susan J. Boyle, Deputy County Counsel, San Diego, for petitioner and respondent.

Conservatee Janice Van Ornum appeals the order reestablishing the conservatorship of her person pursuant to Welfare and Institutions Code section 5350 (Lanterman/Petris/Short Act).   She contends the court erred in finding the petition should not be stricken as legally insufficient.

FACTS

On January 14, 1981, the original petition was filed by the Public Conservator of San Diego County (Welf. & Inst.Code, § 5350) to appoint a conservator of the person for appellant Janice Van Ornum.   As a result, a conservator was appointed.   The conservatorship was renewed twice for two successive one-year periods thereafter.

The instant petition to reestablish the conservatorship was filed by the Public Conservator on January 27, 1984.   Van Ornum objected to the legality and sufficiency of the petition contending in her motion to strike:  (1) it lacked a proper verification as required by Probate Code section 1450, and (2) it was not supported by the opinions of two physicians or licensed psychologists, both of whom had personally examined the patient (proposed conservatee) as required by Welfare and Institutions Code section 5361.

We conclude the motion was correctly denied on both grounds for the reasons stated below.

DISCUSSION

I

 Appellant correctly contends petitions to reestablish conservatorships of the person must be verified.

Probate Code section 1233 states:

“Except as otherwise provided by this code or by rules adopted by the Judicial Council, the provisions of Part 2 (commencing with Section 307) and of Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this code with regard to discovery, trials, new trials, appeals, and all other matters of procedure.”

Code of Civil Procedure section 446 provides in pertinent part:

“․  When the state, any county thereof, city, school district, district, public agency, or public corporation, or an officer of the state, or of any county thereof, city, school district, district, public agency, or public corporation, in his or her official capacity is plaintiff, the complaint need not be verified;  and if the state, any county thereof, city, school district, district, public agency, or public corporation, or an officer of such state, county, city, school district, district, public agency, or public corporation, in his or her official capacity is defendant, its or his or her answer need not be verified.”

Probate Code section 1450 provides, however:

[e]xcept as otherwise specifically provided, all of the following shall be verified:

(a) A petition, report, or account filed pursuant to this division.

(b) An objection or response filed pursuant to this division to a petition, report, or account.  (Italics added.)

Specific exceptions may be found in the Probate Code, as referred to by section 1450, which specifically take other probate proceedings and petitions, reports or accounts related thereto, out of the verification requirement thereof.1  There is no specific exception for petitions to reestablish conservatorships of the person in the Probate Code.

 Not all provisions of part 2 and of article 3, chapter 3, of Title 3 of part 4 of the Code of Civil Procedure apply to probate proceedings (Estate of Neilson (1962) 57 Cal.2d 733, 22 Cal.Rptr. 1, 371 P.2d 745).   This is because proceedings such as heirships and conservatorships are not general civil actions but are special proceedings of a civil nature involving special rights and remedies.2  Such proceedings are to conform only “as nearly as is consistently possible, to those for civil actions.”  (O'Day v. Superior Court (1941) 18 Cal.2d 540, 543, 116 P.2d 621.)

Estate of Neilson, supra, 57 Cal.2d 733, 22 Cal.Rptr. 1, 371 P.2d 745 is instructive in that it also involves a matter arising under the Probate Code and deals with a question as to the interface and potential conflict between specific Probate Code sections and more general Code of Civil Procedure sections.

“Code of Civil Procedure section 1033 provides in part that ‘[t]he clerk or judge must include in the judgment entered up by him, any interest on the verdict or decision of the court, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained.’   Ines contends that this section is incorporated into the Probate Code through section 1233 of that code and applies to heirship decrees.  Probate Code section 1232, however, authorizes an award of costs in heirship proceedings, but neither that nor any other section of the Probate Code specifically authorizes an interest award in such proceedings.   The fact that provision is made for costs but not for interest indicates that interest is not to be awarded.   Moreover, Code of Civil Procedure section 1033 is included in part 2, title 14, chapter 6, which deals almost exclusively with the awarding of costs in civil actions.   Had the Legislature meant to authorize interest awards in heirship proceedings it would have specifically so provided in the Probate Code as it did for costs or would have made no provision for costs in that code.   Furthermore, an heirship proceeding is not an ordinary civil action, but a specialized proceeding in rem.  (Estate of Wise, 34 Cal.2d 376, 383 [210 P.2d 497].)  The sole purpose of such a proceeding is to ‘determine who are the heirs of the decedent or entitled to distribution of the estate and [to] ․ specify their interests.’  (Prob.Code, § 1081.)   The decree is not in favor of one of the parties against another.  (Estate of Wise, supra, 34 Cal.2d at p. 385 [210 P.2d 497];  Estate of Radovich, 48 Cal.2d 116, 120 [308 P.2d 14].)  As was stated in Whalen v. Smith, 163 Cal. 360, 364 [125 P. 904, Ann.Cas. 1913E 1319]:  ‘This section [predecessor of Prob.Code, §§ 1080–1082] provides a special proceeding for the purpose of ascertaining and determining, in advance of distribution, the persons who have succeeded to the estate and the portions inherited by or devised to each of them․  No other judgment is to be rendered and no disposition whatever is to be made of the estate.   It is a determination, first, of the persons entitled as heirs, devisees, or legatees, or as their successors, if any have died;  and, second, the interest of each one in the estate of the decedent.’ ”  (Estate of Neilson, supra, 57 Cal.2d 733, 748, 22 Cal.Rptr. 1, 371 P.2d 745.)

We hold Probate Code section 1450 requires verification of the petition herein;  to the extent Code of Civil Procedure section 446 relieves an officer of a public agency in his official capacity from verifying complaints when he is plaintiff, we hold that Code of Civil Procedure section is inapplicable to the Public Conservator as petitioner in petitions to reestablish conservatorships of the person.   Further, for public policy reasons we find petitions for reestablishment of conservators of the person should be verified because of the important rights a person loses upon being continued a conservatee:  these rights may include the right to vote, to hold a driver's license, to make contracts, to choose a place to live, and to make medical decisions (in this case Van Ornum lost her right to refuse to consent to medical treatment related to her grave disability).

Had the Legislature meant to require only an unverified petition from a public agency in a conservatorship proceeding, it would have specifically provided so in the Probate Code or would have made no provision therein for verified petitions at all.  (See Estate of Neilson, supra, at p. 748, 22 Cal.Rptr. 1, 371 P.2d 745.)

Appellant contends the authorized use by a clerk for the Public Conservator of the Public Conservator's facsimile stamp on the verification does not satisfy the verification requirement.   This petition contains a verification not personally signed by the Public Conservator of the County of San Diego nor personally signed by a deputized Deputy Public Conservator but is instead facsimile stamped with the name of the Public Conservator.   Such stamping was, however, done contemporaneously with issuance of the petition and with the specific authorization and at the direction of the Public Conservator.3

 A signature to an instrument or document may be attached by the hand of another, at the request of the party and on behalf of the party either by printing, writing, stamping, or the like (Security Pacific Nat. Bank v. Chess (1976) 58 Cal.App.3d 555, 561, 129 Cal.Rptr. 852;  Kadota Fig Assn. v. Case-Swayne Co. (1946) 73 Cal.App.2d 796, 819, 167 P.2d 518).   Though the Code of Civil Procedure does not define the word “sign,” “signed” or “signature,” the California Uniform Commercial Code does define “signed” as:  “[A]ny symbol executed or adopted by a party with present intention to authenticate a writing.”  (Cal.U.Com.Code, § 1201, subd. (39).)  The key to whether some form other than personally affixing a signature satisfies the requirement of signing is whether the person so directing and authorizing this alternative has the intent to be bound by it, the same as if personally signing it.

In the case of verification of a petition, the person must, by allowing a facsimile stamp of his/her signature to be affixed, intend the stamp to serve as his/her acknowledgment of his/her own good faith belief in the truth of the matters contained therein, and intend under penalty of perjury under the laws of the State of California to assert that the matters therein are true and correct.

 The trial court could have so concluded from the reasonable inferences from the uncontradicted testimony of the Public Conservator herein.4

II

Appellant also contends two physicians or licensed psychologists must both personally examine the conservatee in order for there to be the requisite degree of medical opinion supporting a petition for reestablishment of a conservator of the person.

Welfare and Institutions Code section 5361 states in pertinent part:

“․  If upon the termination of an initial or a succeeding period of conservatorship the conservator determines that conservatorship is still required, he may petition the superior court for his reappointment as conservator for a succeeding one-year period.   The petition must include the opinion of two physicians or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely disabled as a result of mental disorder or impairment by chronic alcoholism.”

This statute does not contain a requirement that either or both of the doctors offering an opinion as to appellant's mental condition have personally examined appellant.   In contrast, Welfare and Institutions Code section 5326.7, regulating the administration of convulsive treatment, states in subsection (b):

“A review of the patient's treatment record is conducted by a committee of two physicians, at least one of whom shall have personally examined the patient․”

Section 5326.7 appears to constitute an acknowledgment by the Legislature that a physician can offer an expert opinion without personally examining the patient.

 We conclude a physician or psychologist is qualified to give an opinion of grave disability without personally examining the proposed conservatee.   Evidence Code section 801(b) defines the permissible scope of testimony by an expert and limits that testimony to opinions

“[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, ․”  (Italics added.)

Courts have long upheld the admission into evidence of a physician's expert opinion that is based upon information derived from medical treatises, the results of tests conducted by other experts, and the review of medical records.  (See, People v. Phillips (1981) 122 Cal.App.3d 69, 85, 175 Cal.Rptr. 703;  Brown v. Colm (1974) 11 Cal.3d 639, 644, 114 Cal.Rptr. 128, 522 P.2d 688;  People v. Lewis (1960) 186 Cal.App.2d 585, 9 Cal.Rptr. 263.)

In this case there is no evidence to suggest Dr. Addario merely rubber-stamped Dr. Bergsma's determination of grave disability, as suggested by appellant.   Dr. Addario states in his recommendation he concurs that Van Ornum remains gravely disabled due to a mental disorder which renders her incapable of providing needed food, clothing, and shelter without supervision.   He recommends the reestablishment of the conservatorship.   He acknowledges that if the conservatorship is contested he will be requested to appear in court.

 Further, it must be noted the requirement in section 5361 of the Welfare and Institutions Code concerning the opinion of two physicians in the petition to reestablish is procedural, primarily, rather than substantive.   The fact that we hold the second medical expert need not personally examine the proposed conservatee does not in any way diminish respondent's burden of proof at the hearing to reestablish conservatorship.   Respondent must still prove at the hearing beyond a reasonable doubt the conservatee remains gravely disabled.  (Cf. Conservatorship of Hofferber (1980) 28 Cal.3d 161, 167 Cal.Rptr. 854, 616 P.2d 836.)

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

1.   For example, Probate Code section 2632(c) provides for a specific exception:  “If the guardian or conservator dies and there is no executor or administrator, or if the guardian or conservator becomes incapable of rendering an account and has no conservator of the estate, or if the guardian or conservator absconds, the court may compel the attorney for the guardian or conservator or the attorney of record in the guardianship or conservatorship proceeding to render an account of the guardianship or conservatorship to the extent that information or records are available to the attorney.   The account of the attorney need not be verified.   A fee shall be allowed to the attorney by the court for this extraordinary service.”

2.   “Proceedings formerly listed by the Code of Civil Procedure as special proceedings of a civil nature, but which are now governed by provisions of one or another of the newer special codes, include:  ․ proceedings in probate courts, ․”  (1 Cal.Jur.3d § 19, pp. 461–462, see former Code Civ.Proc., § 1294 et seq.)

3.   The Public Conservator testified at the hearing in this matter the clerk in question had his permission and instructions to rubber-stamp this petition and initial the stamping.   He testified it had been his practice to do so.   His counsel argued it was his intention to be held to the contents of the petition as if he had personally signed it, having authorized the use of his facsimile stamp on these petitions in this fashion.

4.   The petition to reestablish contains in essence only the following information:(1) Name and address of the conservatee(2) Known relatives of the conservatee(3) Conservatee remains gravely disabled “as evidenced by the attached opinions of two duly licensed physicians ․”This is just the type of information that the public conservator's clerk can be directed to check for accuracy to the same degree as the public conservator would;  no degree of discretion is being exercised.   The public conservator could clearly in good faith be held to such averments later even though at the time of execution he has no personal knowledge.

COWETT, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

WIENER, Acting P.J., and LEWIS, J., concur.