Conservatorship of T.B.
Following a court trial, T.B. was found to be gravely disabled and appointed a conservator under the Lanterman-Petris-Short Act (
The issue presented involves the proper interpretation of
Applying this construction to the facts before us, we conclude that the trial court abused its discretion in denying T.B.‘s motions to dismiss the proceedings, but that reversal is not required because T.B. has not demonstrated prejudice. We further conclude that T.B. has not shown her due process rights were violated by the delay. We therefore affirm.
BACKGROUND
The Petition and Pre-Trial Proceedings
On August 4, 2022, after T.B. was charged in a criminal case with two counts of misdemeanor battery upon a peace officer (
Deputy Conservator Melinda Shrock, MFT, prepared a report on her investigation. In the report, Shrоck noted that she had evaluated T.B. at the detention facility and reviewed T.B.‘s medical and psychiatric history, as well police reports from the criminal proceedings. Shrock reported that T.B., then 46 years old, had been diagnosed with schizoaffective disorder and methamphetamine use disorder. She had been homeless since at least 2011. Shrock determined that T.B. was gravely disabled in that she was unable to provide for her food, clothing, and shelter due to having a major mental illness. Shrock thus recommended that T.B. be placed in locked mental health facility where she could obtain structured treatment and safety and be appointed a conservator of her person. Shrock also recommended that certain disabilities
On October 10, the Public Guardian filed a petition for appointment of a conservator, for appointment of a temporary conservator pending resolution of that petition, and for imposition of certain disabilities as recommended in Deputy Conservator Shrock‘s investigation report. On the same day the petitiоn was filed, the trial court appointed T.B. both a temporary conservator and counsel.
At a hearing held on November 4, T.B.‘s attorney, Deputy Public Defender Alyssa Huff, requested a “jury trial time not waived.” The court granted the request. It set trial for 10 days later, on November 14, consistent with
When the parties appeared at the scheduled trial on November 14, the Public Guardian‘s attorney, Monica Mueller of the County Counsel‘s Office, requested a continuance because she was “still awaiting records.” The court also noted that it was going forward with other trials that week and that no other departments would be available to cover the calendar on conservatorship cases. The court found good cause to continue trial and scheduled it for December 5. T.B.‘s attorney did not object to the continuance.
On December 5, the court informed the parties that it was expecting to proceed on another conservatorship trial that week; that there were two potential trials scheduled for that week as well; and that no other departments would be available to cover the conservatorship case calendar. Also, according to the minute order, counsel (of which party was not specified) was going on vacation from December 19 to 26. The court found “good cause to continue this matter due to Court and Counsel unavailability.” Trial was continued to January 9, 2023. T.B.‘s attorney did not object to the continuance.
Meanwhile, on January 1, 2023, Assembly Bill 2275 took effect. Among other changes, it amended
On January 9, the parties appeared in court, and, for a third time, attorney Mueller asked for continuance, because she was still awaiting records from one of T.B.‘s prior psychiatric providers and was scheduled for another trial that week. The court noted it, too, would be engaged in another trial that
On February 27, Mueller reported she had received the records from T.B.‘s providers. However, she requested another continuance, stating: “As Your Honor‘s already aware, Petitioner has prepared two court trials and two jury trials for this week, prioritizing based on dates set, as well as other issues such as the need for interpreters in certain trials, and in light оf being prepared for four trials, Petitioner is not prepared on all 12 that are set for today, and so Petitioner would be moving to continue on this matter based on essentially Petitioner preparing for four others.”3
This time, T.B.‘s attorney, apparently anticipating another continuance request, filed earlier that day T.B.‘s “Objection to Continuance and Motions for Release and Dismissal” pursuant to amended
The court found good cause to continue trial, thus overruling T.B.‘s objections and denying her motion to dismiss, and scheduled trial for March 27.
On March 27, another attorney from the County Counsel‘s office, Nina Dong, appeared on behalf of the Public Guardian and stated she was ready to proceed with trial. The court, however, informed the parties that it was currently occupied in another trial, and that Department 14 was the only department available for conservatorship trials. Again, T.B. had filed earlier
On April 17, although the matter was not formally on calendar, the parties appeared before the court. Without opposition, attorney Mueller requested that the court advance the scheduled May 1 trial date to April 24. The court granted the request.
The Trial
A court trial commenced on April 24—171 days after T.B.‘s initial demand for trial—and concluded the following day. T.B. refused transport to the court from the facility where she was placed and also refused to appear via Zoom. T.B., through her counsel, waived her right to be present and to a jury trial.
The Public Guardian called three witnesses: Deputy Conservator Melissa Shrock, T.B.‘s father, Andre B., and psychiatrist Dr. Shahbaz Khan.
Shrock qualified as an expert on grave disability. She testified that T.B. was placed at Villa Fairmont Rehabilitation Center, an institution for mental disease. When Shrock had previously interviewed T.B., T.B. stated she had lived with her grandmother until her grandmother passed away 10 years ago. T.B. believed her grandmother was still in the home, even though she had passed, the home had been sold, and other people were living there.
T.B. admitted to Shrock that she had a history of drug and alcohol use. During Shrock‘s evaluation, T.B. was observed to be having visual hallucinations. She would swat the counter as if to swat bugs, which were not actually there. She also appeared startled at times, turning around to look as if someone was behind her. In addition, T.B. told Shrock that her father was “Jason” from the movie, “Friday the 13th.” T.B. also said that she had never met her father, but Shrock had spoken to her father, who reported that T.B. had lived with him previously. T.B. also had paranoid delusions that someone had electrocuted her during the night and that people could hear her thoughts. T.B. denied having a mental illness diagnosis or needing psychiatric medication.
T.B. told Shrock that she “likes to stay outside.” She would obtain food and clothing by asking people for money and, whenever she was at Target, by putting food and clothing in a shopping cart and walking out the door.
Andre B., T.B.‘s father, testified that he saw T.B. regularly one to three times per week, and spoke with her on the phone two to three times per week. T.B. used to live at her grandmother‘s house until her grandmother passed away about seven to eight years ago and the house was sold. After her grandmother‘s passing, T.B. stayed with her two godmothers “off and on” for a couple of years, before starting to live on the streets. She tried to live with her son and also with her father, but mostly lived on the streets. When Andre saw T.B. on the street, she looked homeless and hungry, and she was not taking her medications. Andre also had seen T.B. walking on the street naked and had to tell her to wear clothes in public “many . . . times.”
Andre testified that T.B. talked to herself and to people that were not there. She was also hostile. Andre brought T.B. to the hospital six to seven times and had her admitted to mental institutions and hospitals numerous times. Andre testified T.B. never wanted to talk about her mental illness. T.B. refused to take her prescribed medications around the time she first became ill about 15 years ago. She told her father she did not need medication. In the past, Andre saw T.B. throw her medication into the toilet or away in the garage at either his or T.B.‘s grandmother‘s house.
Andre was scared when T.B. used to live with him between the time she was 30 and 40 years old. She would constantly set the stove on fire, would never try to put out the fires, and would walk away, sometimes while saying, “Burn, burn, burn.” T.B. generally did not stay in one place and did not abide by rules. T.B. admitted to using methamphetamine, pills, and cocaine whenever she was able to buy them herself or someone gave them to her.
Andre testified he was unable to provide for T.B.‘s food, clothing, and shelter needs.
Dr. Khan qualified аs an expert in psychiatry and grave disability. Before trial, Dr. Khan went to Villa Fairmont and met with T.B. He introduced himself to her and explained he was there to evaluate her for grave disability. T.B. “seemed very hostile and belligerent and didn‘t want to speak with [him] for too long.” Dr. Khan gave T.B. some time and space to gather herself, but she grew more hostile and guarded.
Dr. Khan reviewed records from the various psychiatric facilities where T.B. had been placed, as well as reports from the Deputy Conservator.
Dr. Khan was asked whether a person meets the statutory criteria for grave disability based on the following hypothetical facts: if the person were diagnosed with a major mental illness, and experienced hallucinations, delusions, and disorganized behavior, “such as being frequently naked on the street..., walking away from stoves when items are cooking on it,” or “plan[ning] on continuing to use methamphetamine, but does not believe psychiatric medication helps them and does not want it or to take it.” Dr. Khan answered in the affirmative. He testified that the person would be gravely disabled because that person would have the symptoms of a severe mental illness and, as a result, would not be able to take care of his or her basic needs, such as food, clothing, shelter. Also, that person would be putting himself or herself at risk, and would not have “the insight to do things in a safe manner.”
At the conclusion of trial, the court found beyond a reasonable doubt that T.B. was gravely disabled in that she was unable to рrovide for her own basic needs due to a severe mental disorder. It also found by clear and convincing evidence that the special disabilities requested by the Public Guardian should be imposed. The court issued a letter of conservatorship, and an order appointing a conservatorship of the person of T.B. for a one-year period starting April 25, 2023.
DISCUSSION
The LPS Act
In order to address the claims raised in this appeal, a brief overview of the LPS Act is required. “The LPS Act governs the involuntary detention,
“[T]here is no question that the public interests promoted by the LPS Act are substantial.” (John L., supra, 48 Cal.4th at p. 150.) “Among its goals are ‘ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (
Likewise, “[t]here can be no doubt ‘[t]he liberty interests at stake in [an LPS] conservatorship proceeding are significant. A person found to be gravely disabled may be involuntarily confined for up to one year, and the conservatorship may be extended for additional one-year periods, so long as the person remains gravely disabled.’ (Ben C., supra, 40 Cal.4th at p. 540.) In addition to such confinement, a conservatorship may result in the loss of other personal rights, including driving privileges, contracting and voting rights, and the right to refuse or consent to medical treatment. (See ibid.;
“[B]ecause the private interests implicated in an LPS conservatorship are significant, ‘several layers of important safeguards’ have been built into the system (Ben C., supra, 40 Cal.4th at p. 540) to ‘vigilantly guard[] against erroneous conclusions’ in such proceedings (id. at p. 542). For starters, the LPS Act provides for a ‘carefully calibrated series of temporary detentions for evaluation and treatment’ before a person may be found to be gravely disabled and subject to a year-long commitment. (Ben C., at p. 541.) The process begins with an initial 72–hour detention for evaluation and treatment (
Interpretation of Amended Section 5350(d)(2)
When T.B. demanded a trial on November 4, 2022,
Effective January 1, 2023, after T.B. demanded trial, but before trial commenced, the Legislature amended
T.B. argues that the Legislature intended to depart from the existing statutory interpretation and adopt a new one that gives the time limit in
General Legal Principles
The issue here involves the interpretation of a statute, a question of law that we review de novo. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)
“In interpreting statutory requirements, court have . . . used the terms ‘mandatory’ and ‘directory.‘” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340 (Kabran).) “The word ‘mandatory’ may be used in a statute to refer to a duty that a governmental entity is required to perform as opposed to a power that it may, but need not exercise.” (California Correctional Peace Officers Association v. State Personnel Board (1995) 10 Cal.4th 1133, 1145 (California Correctional).)
“Whether a requirement is mandatory or directory is determined largely by its effect: ‘If the failure to comply with a particular procedural step does not invalidate the action ultimately taken, . . . the procedural requirement is referred to as “directory.” If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed “mandatory.” [Citation.]’ [Citations.] The mandatory-directory distinction is not to be confused with the distinction between ‘obligatory’ and ‘permissive’ statutory provisions. [Citation.] The latter distinction concerns whether a governmental entity or party is required to conform to a certain procedure (i.e., obligatory) or whether it ‘may or may not comply as it chooses’ (i.e., permissive). [Citations.] By contrast, ‘“the ‘directory-mandatory’ distinction is concerned only with whether a particular remedy—invalidation of the ultimate governmental action—is appropriate when a procedural requirement is violated.“’ [Citations.]” (Kabran, supra, 2 Cal.5th at p. 340.)
“Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. [Citation.]” (California Correctional, supra, 10 Cal.4th at p. 1145.) “Courts have . . . adopted various tests to
“‘Some courts have held that the presumption may only be overcome where “a consequence or penalty is provided for failure to do the act within the time commanded.“’ [Citations.] Other courts have looked to whether the consequences of holding a time limitation mandatory or jurisdictional ‘would defeat or promote the purpose of the enactment.’ [Citation.]” (Kabran, supra, 2 Cal.5th at p. 343.) “There is ’ “no simple, mechanical test” ’ for making this determination.’ [Citation.]” (Ibid.) As in any case involving statutory interpretation, “[t]he question is ultimately one of legislative intent. [Citation.]” (Ibid.) The process “to ascertain [Legislative] intent may involve up to three steps.” (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082 (MacIsaac).) First, we look to the words of the statute itself, as the “chosen language is the most reliable indicator of its intent.” (Ibid.) “If the statutory language is clear and unambiguous, our task is at an end, for there is no need for judicial construction.” (Id. at p. 1083.) When the plain meaning of the text does not resolve the question, we proceed to the second step and turn to maxims of construction and extrinsic aids, including legislative history materials. (Ibid.) If ambiguity remains, we “must cautiously take the third and final step” and “apply reason, practicality, and common sense to the language at hand.’ [Citation.]” (Id. at p. 1084.) At this step, “we must consider the consequences that will flow from a particular interрretation. [Citation.]” (Ibid.)
Another pertinent principle of statutory interpretation is that “the Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes ’ “in the light of such decisions as have a direct bearing upon them.” ’ [Citations.]” (People v. Overstreet (1986) 42 Cal.3d 891, 897; accord, Leider v. Lewis (2017) 2 Cal.5th 1121, 1135.) We thus view the amendment of
Former Section 5350(d)(2) and Cases Interpreting It
As noted, when T.B. demanded a trial,
In James M., supra, 30 Cal.App.4th 293, because of a snowstorm, the trial for the reappointment of a conservator was delayed until 14 days after the conservatee‘s demand for a trial. In rejecting the conservatee‘s claim that the delay divested the trial court of jurisdiction to hear the reappointment petition, James M. concluded that the statutory time limit was directory. (See id. at p. 298–299.) The court first explained, “‘the question of whether a public official‘s failure to comрly with a statutory procedure should have the effect of invalidating a subsequent governmental action has been characterized as a question of whether the statute should be accorded ‘mandatory’ or ‘directory’ effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory....‘” (Id. at p. 298.) Applying these principles, the court determined: ”
The James M. court continued: “Moreover, one consequence of holding
The James M. court went on to acknowledge “that a conservatee has a strong interest in a prompt determination of issues raised by a reappointment petition so that he or she may avoid the disabilities of conservatorship where they no longer are warranted by the evidence. [Citations.]” (James M., supra, 30 Cal.App.4th at p. 299.) The court, however, determined that “this interest is sufficiently protected by the undisputed power of the superior court to dismiss the reappointment petition where the delay in the proceedings has proved prejudicial to the conservatee‘s interests,” adding, “[w]e do not
Subsequently, the courts in M.M., supra, 39 Cal.App.5th 496 and Jose B., supra, 50 Cal.App.5th 963 adopted the reasoning in James M. in concluding that former
Jose B. provided an additional reason for such a construction: that giving the statute mandatory effect would pose constitutional separation of powers problems. (See Jose B., supra, 50 Cal.App.5th at p. 973.) “[W]hile the Legislature has broad authority to regulate procedure, the constitutional separation of powers does not permit statutory restrictions that would materially impair fair adjudication or unduly restrict the courts’ ability to administer justice in an orderly fashion.’ (Briggs [v. Brown (2017)] 3 Cal.5th [808,] 854.) . . . ‘Deciding cases and managing dockets are quintessentially core judicial functions. They are grounded in the Constitution and may not be materially impaired by statute.’ (Briggs, at p. 858.)” (Ibid.) The court concluded that because strict enforcement of the statutory time limit would impede on these core judicial functions,
Applying that construction to its facts, Jose B. held that the trial court did not act in excess of its jurisdiction in commencing trial for the reappointment of a conservator 137 days after the conservatee‘s jury trial demand. (Jose B., supra, 50 Cal.App.5th at p. 967.) Having so concluded, however, the court expressed it was “deeply troubled by the significant delay of over four months in holding a trial on [the] petition, especially given the lack of any justification by the court for most of the delay.” (Ibid.) It stated that just because the Legislature had “not expressly provided” a penalty for the failure to follow the established time limits “does not mean trial courts should blithely continue conservatorship trials for their judicial convenience.” (Ibid.) The court added that a proposed conservatee‘s proper remedy for prejudicial delay is to file a motion to dismiss for lack of a speedy trial. (Ibid.)
Under Amended Section 5350(d)(2), the Time Limit Is Directory and Dismissal Is Discretionary
T.B. essentially argues that by amending
Based on the plain language of amended
We start with the plain language of amended
Although “the word ‘shall’ in a statute is ordinarily deemed mandatory” (California Correctional, supra, 10 Cal.4th at p. 1143), the word “shall” (or “may“) is not dispositive when deciding whether a timeline is mandatory in the sense that it deprives the government of authority to act. (Olive Lane Industrial Park, LLC v. County of San Diego (2014) 227 Cal.App.4th 1480, 1492, citing People v. Allen, supra, 42 Cal.4th at pp. 101–102.) “The context of the language, as well as other indicia of legislative intent, must be considered.” (People v. Lara (2010) 48 Cal.4th 216, 227.) As noted, one factor bearing on legislative intent on the mandatory or directory effect of a time limit is
It is true, as T.B. contends, that the reasoning of James M. was based, in part, on the absence of any consequence in former
We focus on the phrase “grounds for” in the newly added sentence, “Failure to commence the trial within that period of time is grounds for dismissal of the conservatorship proceedings.” (
Legislature did not intend for dismissal to be automatic or self-executing
upon noncompliance. Instead, it contemplates that some predicate action on
the part of the trial court must be taken to effect dismissal. Thus, as
reasonably interpreted, the language reflects the Legislature‘s intent to
identify what constitutes proper grounds for dismissal of a conservatorship
petition “if the trial court were so inclined, not that dismissal was automatic.”
(Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1179;
cf. id. at pp. 1179–1181 [dismissal under
Had the Legislature intended for dismissal to be required, it would
have said so clearly and explicitly. (Cf.
As such, we agree with the Public Guardian that
Interpreting amended
Assuming, however, that the plain language does not resolve the
interpretation question, we will proceed to the second step of the inquiry andlook to extrinsic aids, specifically the statute‘s legislative history. (MacIsaac,
supra, 134 Cal.App.4th at pp. 1083–1084.) The parties have not supplied us
with any of the legislative history materials from Assembly Bill 2275.
We have on our own motion, consulted the available legislative reports and
analyses from Assembly Bill 2275. The legislative materials contain scant
evidence on the Legislature‘s intent in amending
We therefore proceed to the third step of the interpretation inquiry and consider “the consequences that will flow from a particular interpretation.” (MacIsaac, supra, 134 Cal.App.4th at p. 1084.) Of particular relevance here is the canon of constitutional avoidance. Under that canon, “[w]hen a question of statutory interpretation implicates constitutional issues, we are guided by the precept that ‘[i]f a statute is susceptible of two constructions,one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable.‘” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373, quoting Conservatorship of Wendland (2001) 26 Cal.4th 519, 548.)
As discussed above, the Jose B. court applied this canon before
concluding
This analysis applies equally to amended
Additionally, we note that the result we reach in accord with ” ‘reason, practicality, and common sense.‘” (MacIsaac, supra, 134 Cal.App.4th at p. 1084.) As discussed above, the LPS Act‘s comprehensive statutory scheme represents a delicate balancing of countervailing public and individual interests. (Ben C., supra, 40 Cal.4th at p. 540.) “There can be no doubt that ‘[t]he liberty interests at stake in [an LPS] conservatorship proceeding are significant.‘” (John L., supra, 48 Cal.4th at p. 150.) Among other interests, a proposed conservatee has a right to the prompt determination of issues raised by a conservatorship petition. (James M., supra, 30 Cal.App.4th at p. 299.) “Likewise, there is no question that the public interests promoted by the LPS Act are substantial.” (John L., at p. 150.) These interests include protecting public safety, providing individualized treatment, supervision, and placement services for the gravely disabled by means of a conservatorship program, and protecting the mentally ill from criminal victimization and from the myriad forms of suffering endured by those unable to care for themselves. (Ibid.)
In view of this broad spectrum of countervailing interests, we believe that the interpretation advanced by the Public Guardian is more reasonable and practical than the one advanced by T.B. Under the Public Guardian‘s interpretation, the court would retain the flexibility to accommodate circumstances beyond a party‘s control—such as, for example, if a proposed conservatee faced a mental health crisis and/or transportation issues and was unable to appear in court, if witnesses were not available to testify on the scheduled date, or subpoenaed records or other evidence were not immediately available—while also being able to dismiss a petition where the delay “has proved prejudicial to the [individual‘s] interests.” (James M., supra, 30 Cal.App.4th at p. 299.) Indeed, T.B. acknowledges that the unavailability of subpoenaed records and “the unexpected unavailability of a courtroom could constitute good cause” for continuing a trial.
On the other hand, the fixed deadline and mandatory dismissal urged by T.B. would render the courts powerless to conduct proceedings beyond the statutory time limit, regardless of the reasons for the delay or the degree of the delay. Moreover, in our view mandatory deadline and dismissal would singularly protect private interests, possibly at the expense of the public interests рromoted by the LPS Act, including “‘the custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community.‘” (Conservatorship of Susan T., supra, 8 Cal.4th at p. 1015.)
For all these reasons, we conclude that the time limit in amended
Application of Amended Section 5350(d)(2) to This Case
T.B. argues that even if trial courts have “discretion to decide whether
dismissal [is] an appropriate remedy” under
Preliminarily, we note that T.B. presents her arguments under various headings in her opening brief. Under the subheading “Abuse of Discretion,” she argues that the court abused its discretion by failing to exercise its discretion altogether. In her words: “the trial court suffered from the mistaken belief that the time limits under the statute were directory not mandatory. Along with the equally mistaken belief that the government‘s decision to devote inadequate resources to the LPS litigation process in court systems in Contra Costa County was perfectly acceptable. Therefore the trial court failed to exercise its discretion and reversal is required.” However, under a different subheading entitled “Relevant Law,” T.B. goes beyond explaining the relevant law and proceeds to argue why the trial court here did not follow it, concluding the “the trial court abused its discretion and made a legal error by failing to recognize the lack of good cause on February 27th and March 27th.”7
As to how to conduct our review under the abuse of discretion standard, “this court explained at some length in People v. Jacobs (2007) 156 Cal.App.4th 728 [that] various definitions of the . . . standard have been announced in numerous cases, but the standard cannot be boiled down to simply calling for reversal only if a ruling appears to be arbitrary, capricious or utterly irrational. (See id. at pp. 736–738.)” (People v. Williams (2021) 63 Cal.App.5th 990, 1000.) Our Supreme Court in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon) confirmed this, explaining: “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.] But the court‘s discretion is not unlimited,” especially when, as here, its exercise implicates a party‘s interest in the prompt determination of issues raised by a conservatorship petition. “Rather, it must be exercised within the confines of the applicable legal principles.” (Ibid.) ” ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.’ [Citations.] ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern the subject of discretionary action vary greatly with context. [Citation.] They are derived from the common law or statutes under which discretion is conferred.‘[Citation.]” (Ibid.; accord, People v. Jacobs, supra, 156 Cal.App.4th at p. 737.)
This leads us to the parties’ arguments related to whether in the
exercise of its discretion to dismiss a conservatorship proceeding under
T.B.‘s argument is also unavailing for the reasons asserted by the
Public Guardian. As the Public Guardian notes, the procedure for
establishing, administering, and terminating LPS conservatorship is the
same as for conservatorship under Division Four the Probate Code except as
otherwise provided in the LPS Act. (
We next address T.B.‘s claim that the court abused its discretion in denying her motions to dismiss. It is undisputed that T.B.‘s trial did not commence within 10 days of her demand for one on November 4, 2022. The court found good cause to continue trial on five separate occasions, resulting in trial commencing on April 24, 2023, 171 days after her demand. As discussed, T.B.‘s first trial date—November 14, 2022, which was within the statutory deadline—was continued because counsel for the Public Guardian, Monica Mueller, was “still awaiting records.” The second trial date of December 5, 2022 was continued because, among other reasons, the court was expecting to proceed on other trials that week. As of the third continuance granted on January 9, 2023, Mueller was still awaiting records and had a calendar conflict, as she was scheduled for another trial that week. Likewise, the court was also unavailable because it was set to preside over other trials that week. T.B.‘s attorney did not object to these three continuances.
T.B. focuses her argument on the fourth and fifth continuances on
February 27 and March 27, 2023, when she finally objected to the
continuances and moved to dismiss the proceedings pursuant to amended
According to T.B., “the trial court abused its discretion . . . by failing to
recognize the lack of good cause on February 27th and March 27th.” T.B.
relies in part on Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th
1389 (Oliveros). In Oliveros, the trial court denied the county‘s request for a
trial continuance due to the unexpected engagement of its attorney in
another trial. ( Id. at p. 1393.) The case went to trial on schedule, without
either the county or its attorney present. The county appealed. (Id. at
pp. 1394–1395.) The appellate court reversed, concluding the trial court abused its
discretion in refusing to continue the case and forcing the county to proceed
to trial without counsel. (Oliveros, supra, 120 Cal.App.4th pp. 1395–1399.)
Oliveros based its holding partly on the grounds that the trial court did not
consider all of the facts and circumstances relevant to ruling on the county‘s
request for a continuance. (Ibid.) It began by noting that ” ‘[j]udges are faced
with opposing responsibilities when continuances are sought. On the one
hand, they are mandated by the Trial Court Delay Reduction Act ( T.B.‘s arguments with respect to Oliveros are not entirely clear. On one
hand, she appears to distinguish Oliveros from this case, asserting that
unlike the unexpected calendar conflict of the attorney in that case, here, the
To the extent T.B. asserts that the trial court here abused its discretion
because it did not consider and weigh all relevant facts and circumstances
before denying her motions to dismiss, we see some merit in this assertion.
As of February 27, 2023, it should have been apparent to the court that
the Public Guardian‘s attorney had a heavily congested calendar. The court
had granted prior requests for continuances due to counsel‘s calendar
conflicts. And on February 27, counsel was scheduled for a total of 12 trials
before the court. In finding good cause to continue trial and deny T.B.‘s
motion to dismiss that day, the court accepted counsel‘s recital of conflicting
obligations, without inquiring whether any other attorney in her office was
available to bring the case to trial in a timely manner. To that end, the court
did not consider whether there were “alternative means to address the
problem that gave rise to” counsel‘s request for a continuance.
( Similarly, on March 27, the court found good cause to continue trial
based on the unavailability of a courtroom, again without giving any
consideration to any of the relevant facts described above. For example, it
did not consider that by that time, it had granted four continuances and that
143 days had elapsed since T.B. demanded a trial. ( Thus, the record does not show that the court considered all of the
relevant facts and circumstances specified in We come to the question of prejudice. T.B. asserts thаt she need not
show prejudice, but that in any event “the prejudice is self-evident.” Wedisagree with both contentions. To the extent T.B. argues she is not required to show prejudice because
“nothing in the law” so requires, she is mistaken. That T.B. must
demonstrate prejudice to obtain reversal under these circumstances is
consistent with the T.B. argues, in conclusory fashion, that the duration of her temporary
conservatorship “is inherently prejudicial,” “[g]iven the clear legislative
intent that LPS cases be handled and litigatеd expeditiously.” T.B.‘s reliance
on “legislative intent” is misplaced, as she overlooks that the Legislature
authorizes for a temporary conservatorship to last as long as six months in
cases where, as here, the proposed conservatee requests a trial on the issue of
grave disability. ( In sum, because T.B. has failed to establish prejudice from the denial of
the motions to dismiss pursuant to In the main heading of the legal argument section of her opening brief,
T.B. asserts that “The Trial Court Abused Its Discretion and Violated [Her]
Due Process Rights by Failing to Grant [Her] Motion to Dismiss the Petition.”
But T.B. makes no attempt in her opening brief to develop her due process
claim, raising only severаl conclusory sentences on the issue. In her reply
brief, T.B. makes a more detailed argument, applying for the first time the
four-factor test in Barker v. Wingo (1972) 407 U.S. 514 (Barker) used to
determine whether pretrial delay violates a T.B. attempts to justify her belated arguments by relying on
Camacho v. Superior Court (2023) 15 Cal.5th 354 (Camacho), a Supreme
Court case that was decided after T.B. filed her opening brief. Camacho
considered for the first time “the constitutional framework for evaluating the
timeliness” of trials under the Sexually Violent Predator Act ( Although Camacho had not been decided before T.B. filed her opening
brief, we fail to see why that prevented her from presenting any cogent
argument to support her due process claim at the outset. T.B. acknowledges
that the due process analysis of Mathews “preexist[ed]” Camacho. Also, as
mentioned, Camacho noted that “the Courts of Appeal have uniformlyborrowed the Barker framework used to adjudicate claims of speedy trial
violations in criminal cases.” (Camacho, supra, 15 Cal.5th at p. 379.) Thus,
the Mathews and Barker analyses were established frameworks for
evaluating due process claims that T.B. could have raised even before the
Camacho decision. Yet, she failed to address either one in her opening brief. In any event, T.B. fails to explain how the Barker framework applicable
to claims of speedy trial violations in criminal cases, or Camacho‘s adoption
of that framework to delayed trials under the Sexually Violent Even if we were to consider them, T.B. fails to establish a due process
violation based on her application of the Barker factors: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant‘s assertion of his right,and (4) the prejudice to defendant. (Barker, supra, 407 U.S. at p. 530.) In Camacho, the court found that in light of the seven-year delay of the
trial, which had yet to occur in that case, the first Barker factor weighed in
support of finding a due process violation. (Camacho, supra, 15 Cal.5th at
pp. 383, 390.) It concluded that the second and third factors did not, given
that the defendant was primarily responsible for the delays and did not
demand trial at any point in the decade preceding that demand. (See id. at
pp. 384-391.) As to the fourth factor, the court noted that prejudice may be
analyzed in light of three interests implicated in the criminal context:
” ‘oppressive pretrial incarceration,’ ” ” ‘anxiety and concern of the accused,’ ”
and, the most serious of these, ” ‘the possibility that the [accused‘s] defense
will be impaired’ ” by dimming memories and loss of exculpatory evidence.
(id. at pp. 391–392.) Applying those principles, the court in Camacho
determined that the delay in that case “had no appreciable impact on
Camacho‘s ability to present his defense.” (id. at p. 393.) The court noted
that there was “some amount of prejudice in Camacho‘s case” given the
seven-year delay was “significant” and he had been involuntarily committed
throughout that period, but there was “no indication that the delay has
undermined the fairness of the proceedings.” (Ibid.) “Any prejudice [was],
moreover, extenuated by the fact that Camacho has not shown he in fact
wanted a timely trial.” (Ibid.) Balancing all of the Barker factors, the court
concluded that Camacho failed to demonstrate a violation of his due process
right to a timely trial. (Ibid.) The conservatorship order is affirmed. Richman, Acting P. J. We concur: Miller, J. Mayfield, J. * In re T.B. (A167919) *Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to Trial Court: Contra Costa County Superior Court; Trial Judge: Honorable Kirk J. Athanasiou; Attorney for Petitioner and Respondent, Public Guardian of Contra Costa County: Thomas L. Geiger, County Counsel, Nina Florence Dong, Deputy County Counsel; Attorney for Objector and Appellant, T.B.: Rudy Kraft under appointment by the Court of Appeal.Due Process
DISPOSITION