IN RE: CONSERVATORSHIP OF the Person of Esther Ann SANTOS. (1987)

On November 5 and December 19, 1985, conservatorships of Esther Ann Santos, Karen Annette Holmes and Barry Reszka were reestablished (Welf. & Inst.Code, §§ 5350, 5361) after the trial court denied motions to dismiss the petitions for lack of jurisdiction.   Santos, Holmes and Reszka appeal and these appeals have been consolidated.

Ms. Santos is a 32–year-old woman suffering from an organic personality disorder and mild mental retardation.   She has a lengthy history of mental problems and was under the care of a conservator before the petition to reestablish conservatorship.

Karen Holmes is a 29–year-old woman suffering from schizophrenia, who is possibly borderline mentally retarded or has a mild organic brain syndrome.   She has been under the care of a conservator since 1979.

Barry Reszka is a 34–year-old man who is grossly psychotic, constantly hallucinating, delusional, paranoid and fearful.   At the time of reestablishment of the conservatorship, he had already been committed to Patton State Hospital after he had exhausted all community placement including locked facilities.

Santos, Holmes and Reszka contend the trial court erred in denying their motions to dismiss for lack of jurisdiction because they were not personally served with petitions to reestablish the conservatorships.   Santos and Holmes also contend they were not served with timely notices of termination of their prior conservatorships.   Additionally, Santos contends the trial court improperly took judicial notice Dr. Palodino, one of the doctors recommending her conservatorship, was a licensed physician and Holmes contends the trial court improperly took judicial notice of the facts in In re Esther Ann Santos (MH 48425).

I

Santos, Holmes and Reszka contend the trial court lacked jurisdiction because they were not personally served with the petition to reestablish conservatorship.

All three were served with the petition by mail, under San Diego County Superior Court Rule 5.90.¹  They argue this service conflicts with the intent of the Lanterman-Petris-Short Act (Welf. & Inst.Code, §§ 5300, et seq.), conflicts with Probate Code section 1824 and deprived them of due process of law.

Citing no direct authority, Santos, Holmes and Reszka argue that because personal service is required to establish an initial conservatorship, personal service should be required in reestablishment of a conservatorship.   However, Welfare and Institutions Code section 5362, which provides for reestablishment, is silent on the mode of service of the reestablishment petition, although it does allow the notice of an impending conservatorship termination to be given in person or by first class mail.  Welfare and Institutions Code section 5350 which authorizes mental health conservatorships, specifically provides Division 4 of the Probate Code procedurally controls the establishment, administration and termination of the conservatorship except in certain enumerated circumstances not relevant here.  Probate Code section 1824 states:

“The citation and a copy of the petition shall be served on the proposed conservates at least 15 days before the hearing.   Service shall be made in the manner provided in Section 415.10 or 415.30 of the Code of Civil Procedure or in such manner as may be authorized by the court.”

 Viewed in this light, a reestablishment petition can be served personally (Code Civ.Proc., § 415.10), by mail with return of acknowledgment of receipt (Code Civ.Proc., § 415.30) or “in such manner as may be authorized by the court.”  (Prob.Code, § 1824;  italics added.) ²  That the superior court, through rule 5.90, also chose to provide for mail delivery of the reestablishment petition is thus wholly acceptable within statutorily mandated conservatorship procedures.   Moreover, delivery of the petition under rule 5.90 sufficiently establishes the court's jurisdiction over the proposed conservatees to hear and decide the respective reestablishment petitions, assuming of course, the notice is not constitutionally infirm (see post, § II).

Santos, Holmes and Reszka counter Guardianship of Debbie V. (1986) 182 Cal.App.3d 781, 227 Cal.Rptr. 554, precludes us from finding rule 5.90 in harmony with Probate Code section 1824.   In Debbie V., the court held authorizing service by mail as prescribed in Probate Code section 1200.5,³ is not permitted by the phrase “or in such manner as may be authorized by the court” as used in Probate Code section 1511, subdivision (b).⁴

In that case, a petition for appointment of a guardian for two minors was served by mail upon the children's parents.   The court held to permit service by mail upon the parents of the children as prescribed in Probate Code section 1200.5, pursuant to that phrase “or in such manner as may be authorized by the court” as used in Probate Code section 1511, subdivision (b), was not permissible because the Legislature, by setting out in section 1511 service by mail with an acknowledgment of receipt, as one of the possible methods of service, precluded service by mail alone.   The court pointed out subdivision (b) of section 1511 authorized service upon parents personally, by mail with acknowledgment of receipt or by such manner authorized by the court, while subdivision (c) of section 1511 authorized service by mail or such manner authorized by the court for service to other relatives or caretakers.   By expressing the three alternative means of service upon parents in subdivision (b) and permitting service by mail upon other relatives in subdivision (c), the Legislature did not intend to permit service by mail upon parents.

Here, Probate Code section 1824 makes no such distinction.   All persons must be served personally, by mail with acknowledgment of receipt or by such method authorized by the court.   Because the whereabouts of the conservatee is known by the County when the notice of a petition to reestablish a conservatorship is mailed, use of the mail is substantially as likely to result in receipt of the notice as an acknowledgment of receipt.

 Indeed, Holmes and Reszka do not contest actual receipt of the notice.   Whether Santos received the notice and petition to reestablish the conservatorship is unclear.   Ms. Contreras, legal procedures clerk for the Department of Social Services, testified she mailed the notice and petition to Santos.   Santos first testified she did not receive papers the color shown by her attorney (which apparently were a different color than those mailed to Santos).   When asked whether she received papers the color of those mailed, Santos replied yes.   When asked when, she replied several years ago.   She was not asked whether she had received the papers more recently.   Santos does not contend the letter was incorrectly addressed.

The burden was on the County to prove the trial court had jurisdiction over Santos.  (See Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43, 131 Cal.Rptr. 246.)   The trial court found, based upon the testimony it heard—the testimony of Contreras and Santos, the court had jurisdiction.   This decision was based upon the factual finding Santos had been served by mail, together with the presumption a letter correctly addressed and properly mailed is presumed to have been received.

On appeal, all of the evidence most favorable to the prevailing party must be accepted as true.   Unfavorable evidence will be disregarded as not having been believed by the trier of fact.   If the evidence so viewed is sufficient as a matter of law, the judgment will be affirmed.  (Estate of Teel (1944) 25 Cal.2d 520, 527, 154 P.2d 384.)   When these rules are applied here, this court must assume Santos received the notice and petition for reestablishment of conservatorship.

II

Santos, Holmes and Reszka also contend absence of personal service deprived them of due process.   It is often said, the opportunity to be heard is the fundamental requisite of constitutional due process (see, e.g., Grannis v. Ordean (1914) 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363).   This right can only be given meaning and vitality if a person is informed of the request for judicial action.   The standard for the adequacy of notice is found in the United States Supreme Court's decision Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.  [Citations.]  The notice must be of such nature as reasonably to convey the required information, ․ and it must afford a reasonable time for those interested to make their appearance․  The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.   The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, ․” (Id. at pp. 314–315, 70 S.Ct. at p. 657;  accord Hayssen v. Board of Zoning Adjustments (1985) 171 Cal.App.3d 400, 404, 217 Cal.Rptr. 464.)

 Thus, due process does not require actual notice, but only a method reasonably certain of accomplishing that end.  (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at p. 319, 70 S.Ct. at p. 659;  Banas v. Transamerica Title Ins. Co. (1982) 133 Cal.App.3d 845, 851, 184 Cal.Rptr. 262.)

 Welfare and Institutions Code section 5362 provides the conservatee as well as his attorney and the professional in charge of the facility in which the conservatee resides shall be notified, in person or by first class mail, of the impending expiration of the conservatorship at least 60 days before that date.   The statutory notice of termination also informs the recipients they will be notified if the conservator decides to proceed with reappointment and that they may request a court hearing or jury trial to contest the continuing need for a conservatorship.  Welfare and Institutions Code section 5350 provides procedures for establishing, administering and terminating conservatorships should comport with Division 4 of the Probate Code.   Probate Code section 1824, further provides a citation and a copy of the conservatorship petition shall be served on the proposed conservatee at least 15 days before a scheduled hearing.   To effect these statutory procedures in the reestablishment context, the San Diego County Superior Court adopted Local Rule No. 5.90.   Rule 5.90 requires notice of the petition to reappoint the conservator be served on the conservatee, the conservatee's attorney and counselor in mental health, at least 15 days prior to the date of the hearing thereon.   This notice shall be served personally or by first class mail.

These procedures are designed to ensure that a proposed conservatee would be reasonably likely to be actually informed of a pending reestablishment proceeding.   Santos, Holmes and Reszka nevertheless argue actual notice is not guaranteed under this scheme.   However, as previously discussed, due process of law does not require such a guarantee.   Here, the plan for alternative service by personal delivery or by mail, the requirement notice be provided at a number of different procedural steps, and the service of notice at each of these steps on others intimately involved with both the conservatee and the conservatorship process are calculated to inform the proposed conservatee.   Here, none of the three presented evidence they were not actually informed of the proposed reestablishment here.   In sum, the service of notice was constitutionally sound.

III

Santos and Holmes next argue the trial court erred in failing to dismiss the petition to reestablish conservatorship because the County Clerk did not notify them of termination of their prior conservatorship at least 60 days prior to termination.   However, the record contains no evidence to support this contention.   Although the termination notice was filed with the court on September 11, 1985 for Santos and October 1, 1985, for Holmes, the statute does not state when the notice must be filed with the court.   There is no record of when the court clerk mailed the termination notice to Santos and Holmes.

Santos and Holmes did not raise this issue in the trial court.   This issue, therefore, is a matter outside the record and may not be raised for the first time on appeal.  (Royster v. Montanez (1982) 134 Cal.App.3d 362, 366–367, 184 Cal.Rptr. 560;  O'Neil v. Spillane (1975) 45 Cal.App.3d 147, 161, 119 Cal.Rptr. 245.)

IV

 Finally, Santos argues the trial court erred in taking judicial notice Dr. Palodino, one of the two doctors who recommended reestablishment of her conservatorship, was licensed to practice medicine when he signed the recommendation for reestablishment of the conservatorship.

Welfare and Institutions Code section 5361 requires that the petition to reestablish conservatorship include the opinion of “two physicians” that the conservatee remains gravely disabled as a result of a mental disorder.   The petition to reestablish conservatorship for Santos included a Recommendation for Reestablishment signed under penalty of perjury by Dr. Palodino and Dr. Walsh in which they concluded that Santos remained gravely disabled due to a mental disorder.   Santos denied that Dr. Palodino and Dr. Walsh were licensed physicians.   Based on several documents and Dr. Walsh's testimony, the court took judicial notice of the fact that Dr. Palodino was a licensed physician when he signed the Recommendation for Reestablishment.

While both Santos and the County argue over judicial notice, the argument is misplaced.   The trial court heard testimony by Dr. Walsh, an associate of Dr. Palodino, that he was acquainted with Dr. Palodino;  that Palodino was employed as a psychiatrist by the County of San Diego during August 1985;  that a County staff psychiatrist must be a licensed doctor;  and that Dr. Walsh had seen Dr. Palodino's medical license.   No evidence contravening these facts was presented.   Given this testimony, the court was not required to take judicial notice Dr. Palodino was licensed to practice when he signed the recommendation.   It was proven by testimony.   There is no requirement a doctor himself testify or show the court his medical license to prove he is licensed.   Here, it was proven through the testimony of Dr. Walsh.

IV

Finally, Holmes contends the trial court erred in taking judicial notice of the Santos file.   Having carefully reviewed the transcript of the December 19 hearing at which the court was requested to judicially notice facts in the Santos file, this court is unable to find any indication of the trial court having done so.   The trial court minutes note judicial notice was taken of case number MH 48425 (Santos ).   However, the taking of judicial notice, like rendition of judgment, is an oral pronouncement.   Entering the pronouncement in the minutes is a clerical function.   A discrepancy between the oral pronouncement as made and as entered in the minutes is presumably the result of clerical error.  (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337.)   The trial court apparently refrained from taking judicial notice of the Santos file.   The question of whether it could have done so cannot be raised on appeal.

The judgment is affirmed.

FOOTNOTES

1.   San Diego County Superior Court Rule 5.90 provides:“Notice of the petition to reappoint the conservator shall be served by the conservator on the conservatee, the conservatee's attorney and counselor in mental health, at least 15 days prior to the date of the hearing thereon.   Said notice shall be served personally or by first class mail, postage prepaid.”

2.   Santos, Holmes and Reszka all argue Code of Civil Procedure section 416.70 should apply to require personal service.   This section, however, governs service of summons to a conservatee and has no application here.

3.   Probate Code section 1200.5 provides:“(a) Notice shall be given in the manner prescribed in subdivision (b) upon the filing of any of the following:“(1) A petition under Section 641 for the setting aside of an estate.“(2) A petition to set apart a homestead or exempt property.“(3) A petition relating to the family allowance filed after the return of the inventory.“(4) A petition for leave to settle or compromise a claim against a debtor of the decedent or a claim against the estate or a suit against the executor or administrator as such.“(5) A petition for the sale of stocks or bonds.“(6) A petition for confirmation of a sale or a petition to grant an option to purchase real property.“(7) A petition for leave to enter into an agreement to sell or give an option to purchase a mining claim or real property worked as a mine.“(8) A petition for leave to execute a promissory note or mortgage or deed of trust or give other security.“(9) A petition for leave to lease or to exchange property, or to institute an action for the partition of property.“(10) A petition for an order authorizing or directing the investment of money.“(11) An account of an executor or administrator or trustee.“(12) A petition for partial or ratable or preliminary or final distribution.“(13) A petition for the delivery of the estate of a nonresident.“(14) A petition for determination of heirship or interests in an estate.“(15) A petition of a trustee for instructions.“(16) A petition for the appointment of a trustee.“(17) Any petition for letters of administration or for probate of will, or for letters of administration-with-will annexed, which is filed after letters of administration or letters testamentary have once been issued.“․“(b) At least 10 days before the time set for the hearing of the petition or account, the petitioner or person filing the account shall cause notice of the time and place of hearing to be mailed to the executor or administrator, when he or she is not the petitioner, to any coexecutor or coadministrator not petitioning, and to all persons (or to their attorneys, if they have appeared by attorney), who have requested notice or who have given notice of appearance in the estate in person or by attorney, as heir, devisee, legatee or creditor, or as otherwise interested, addressed to them at their respective post office addresses given in their request for special notice, if any, otherwise at their respective offices or places of residence, if known, and if not, at the county seat of the county where the proceedings are pending, or to be personally served upon such person.“(c) Proof of the giving of notice shall be made at the hearing;  and, if it appears to the satisfaction of the court that the notice has been regularly given, the court shall so find in its order, and the order shall be conclusive upon all persons when it becomes final.“(d) This section shall not apply to proceedings under Division 4 (commencing with Section 1400).   When a provision of Division 4 applies the provisions of this code applicable to executors or administrators to proceedings under Division 4, a reference to this section in the provisions applicable to executors or administrators shall be deemed to be a reference to Chapter 3 (commencing with Section 1460) of Part 1 of Division 4.“(e) The notice required by this section shall be in addition to the notice, if any, required to be given in the manner specified in Section 1200.”

4.   Probate Code section 1511 provides:“(a) Except as provided in subdivisions (f) and (g), at least 15 days before the hearing on the petition for the appointment of a guardian, notice of the time and place of the hearing shall be given as provided in subdivisions (b), (c), (d), and (e) of this section.   The notice shall be accompanied by a copy of the petition.“(b) Notice shall be served in the manner provided in Section 415.10 or 415.30 of the Code of Civil Procedure, or in such manner as may be authorized by the court, on all of the following (other than the petitioner or persons joining in the petition):“(1) The proposed ward if 14 years of age or older.“(2) The person having legal custody of the proposed ward.“(3) The parents of the proposed ward.“(4) Any person nominated as a guardian for the proposed ward under Section 1500 or 1501.“(c) Notice shall be given by mail sent to their addresses stated in the petition, or in such manner as may be authorized by the court, to all of the following (other than the petitioner or persons joining in the petition):“(1) The spouse named in the petition.“(2) The relatives named in the petition, except that if the petition is for the appointment of a guardian of the estate only the court may dispense with the giving of such notice to any one or more or all of such relatives.“(3) The person having the care of the proposed ward if other than the person having legal custody of the proposed ward.“(d) If notice is required by Section 1461 or Section 1542 to be given to the Director of Mental Health or the Director of Developmental Services or the Director of Social Services, notice shall be mailed as so required.“(e) If the petition states that the proposed ward is receiving or is entitled to receive benefits from the Veterans Administration, notice shall be mailed to the office of the Veterans Administration referred to in Section 1461.5.“(f) Unless the court orders otherwise, notice shall not be given to any of the following:“(1) The parents or other relatives of a proposed ward who has been relinquished to a licensed adoption agency.“(2) The parents of a proposed ward who has been judicially declared free from their custody and control.“(g) Notice need not be given to any person if the court so orders upon a determination of either of the following:“(1) The person cannot with reasonable diligence be given the notice.“(2) The giving of the notice would be contrary to the interest of justice.“(h) Before the appointment of a guardian is made, proof shall be made to the court that each person entitled to notice under this section either:“(1) Has been given notice as required by this section;  or“(2) Has not been given notice as required by this section because such person cannot with reasonable diligence be given the notice or because the giving of notice to such person would be contrary to the interest of justice.

KREMER, Presiding Judge.

BUTLER and TODD, JJ., concur.