Filed 7/17/14
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


Conservatorship of the Person of G.H.               H038826
                                                   (Santa Clara County
                                                    Super. Ct. No. 1-78 MH025600)


SANTA CLARA COUNTY PUBLIC
GUARDIAN’S OFFICE,

        Plaintiff and Respondents,

            v.

G.H.,

        Defendant and Appellant.



        G.H. appeals from an order reappointing a conservator of his person under the
Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.). His appeal calls
upon us to address the question of whether the trial court can impose a terminating
sanction, pursuant to Code of Civil Procedure section 2032.410, against a proposed LPS
conservatee in the absence of a court order requiring a mental examination of the
proposed conservatee.1

        1
          After the parties completed briefing in this matter, G.H.’s counsel informed this
court that G.H. died on April 19, 2014. His death during the pendency of the appeal
abates all further proceedings in the case. (People v. Her (2013) 216 Cal.App.4th 977,
979, fn 1.) However, we exercise our inherent authority to retain the appeal for issuance
of an opinion because it raises an important issue of public interest that is likely to recur
in other cases. (See, e.g., People v. Nottoli (2011) 199 Cal.App.4th 531, 535, fn 3.)
                                        BACKGROUND
       In 1998, the Santa Clara County Superior Court established a conservatorship over
G.H.’s person pursuant to the LPS Act. Since that time, G.H. has been under continuous
conservatorship.
       On March 27, 2012, the Santa Clara County Public Guardian (hereafter “Public
Guardian”) filed a petition to be reappointed G.H.’s conservator under the LPS Act. The
petition alleged that G.H remained gravely disabled as a result of mental disorder.
       G.H.’s counsel requested that the matter be set for an evidentiary hearing. The
trial court set the evidentiary hearing for May 9, 2012.
       On May 9, 2012, G.H. was not present in court. The Public Guardian explained
that G.H. had refused to submit to a mental examination with the Public Guardian’s
doctor, and that it did not intend to transport G.H to court unless G.H. submitted to the
mental examination. G.H.’s counsel requested that the evidentiary hearing on the
reappointment petition be continued, and he also requested that G.H be transported to
court for the evidentiary hearing. The Public Guardian asserted that G.H.’s failure to
submit to a mental examination was a discovery violation, that the appropriate sanction
for such a discovery violation was to deny G.H. an evidentiary hearing, and that there
would thus be no need to transport G.H. to court if he failed to submit to a mental
examination. G.H.’s counsel argued that G.H. had a right to a “contested hearing . . .
regardless of whether he agree[d] to see the doctor.” The court issued the following
ruling: “I’m going to make two orders. The first is I will continue this evidentiary
hearing to May 23[] . . . . I will further order that if [G.H.] does not meet with the doctor
prior to that hearing, then there’s no obligation to transport him at that time . . . .”
       On May 23, 2012, G.H. was absent from court. The Public Guardian explained
that G.H. had again refused to submit to a mental examination with the Public Guardian’s
doctor. The Public Guardian requested that the court grant the reappointment petition

                                               2
without an evidentiary hearing as a sanction for G.H.’s failure to submit to the mental
examination. G.H.’s counsel argued that G.H. had a right to a trial and a right to be
present in court, regardless of whether G.H. cooperated with the Public Guardian’s
doctor. The court granted a continuance so that the parties could file written briefing.
       G.H. filed a “Brief Regarding Right to Trial on Petition to Reestablish
Conservatorship.” G.H.’s brief argued that G.H. had a “due process right to an
evidentiary hearing on the issue of whether he continue[d] to be gravely disabled.” The
brief also argued that G.H. had “no obligation” to “cooperate with or even speak to
witnesses who [were] retained by the opposition.” The Public Guardian filed an
“Opposition Brief Regarding Right to Trial on Petition to Reestablish Conservatorship.”
The Public Guardian’s brief argued that G.H.’s failure to submit to a mental examination
with the Public Guardian’s doctor warranted “the imposition of an issue/evidence
sanction, pursuant to [Code of Civil Procedure] § 2032.410, barring [G.H] from
contesting [the Public Guardian’s] evidence.”
       The court issued a ruling on the briefs at a hearing on July 25, 2012. G.H. was not
present at the hearing. The court granted the Public Guardian’s request for a discovery
sanction and granted the reappointment petition. The court filed a written order that
explained the ruling. The written order noted that G.H.’s failure to submit to a mental
examination with the Public Guardian’s doctor authorized the court to impose an
evidence sanction or a terminating sanction pursuant to Code of Civil Procedure
section 2032.410. The written order concluded: “Therefore, whether termed an evidence
or a terminating sanction, [G.H.], as a consequence of his repeated non-compliance, has
forsaken his right to an evidentiary hearing and the re-appointment Petition is granted
based upon the physician’s declarations that accompanied the Petition’s filing.”




                                             3
       On August 2, 2012, the court issued an order reappointing the Public Guardian as
conservator of G.H.’s person. The order specified that the conservatorship would expire
one year from April 15, 2012.
       G.H. filed a timely appeal on March 7, 2013. On July 5, 2013, the Public
Guardian filed a “Motion for Judicial Notice, Motion for Consideration of Additional
Evidence Under Code of Civil Procedure Section 909, and Motion to Dismiss the
Appeal.” On July 22, 2013, G.H. filed a “Motion for Judicial Notice and Opposition to
Respondent’s Motion to Dismiss Appeal.”2
                                        DISCUSSION
       G.H. contends that the order reappointing the Public Guardian as conservator of
his person must be reversed because it was the product of an improper sanction.
Specifically, he asserts that the trial court erred in issuing a terminating sanction pursuant
to Code of Civil Procedure section 2032.4103 because there was no court order requiring
him to submit to a mental examination.
       The Public Guardian moves to dismiss the appeal on the ground of mootness. The
Public Guardian asserts that the appeal is moot because the conservatorship that is the
subject of G.H.’s appeal has expired and a new petition for reappointment of the
conservator has been granted.
       We will not dismiss the appeal as moot, and we will consider the merits of the
appeal. Given that there was no court order requiring G.H. to submit to a mental
examination, we conclude that the trial court abused its discretion in issuing a terminating




       2
         We grant the Public Guardian’s request for judicial notice, and we also grant
G.H.’s request for judicial notice. We deny the Public Guardian’s request to consider
additional evidence.
       3
           Subsequent unspecified statutory references are to the Code of Civil Procedure.
                                              4
sanction pursuant to section 2032.410, and we will reverse the order reappointing the
Public Guardian as conservator of G.H.’s person.4
Mootness
       We decline to dismiss the appeal as moot. G.H.’s appeal presents a significant
issue that could evade appellate review if we declined to consider it. “ ‘Because a
conservatorship is relatively brief (one year) in comparison with the appellate process, we
find it likely that this issue . . . is one capable of recurring, yet of evading review because
of mootness.’ ” (In re Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 961.)
“Because procedures for reestablishment of conservatorships ‘are of great public interest’
and a reestablishment issue ‘could perpetually evade appellate scrutiny’ [citation], we
exercise our discretion to consider, and address the merits of, this appeal.” (Ibid.)
Standard of Review
       We review the trial court’s imposition of a discovery sanction under the abuse of
discretion standard. (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.)
“ ‘ “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.” ’ ” (Miyamoto v.
Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1218-1219.)
The Trial Court Abused its Discretion in Imposing the Terminating Sanction
       LPS proceedings “are civil, not criminal, and the civil trial procedural rules are the
ones which apply.” (In re Conservatorship and Estate of George H. (2008) 169
Cal.App.4th 157, 162.) Thus, we do not question the trial court’s conclusion that it
possessed authority, under section 2032.410, to impose a discovery sanction in an LPS



       4
        G.H. also contends that reversal of the reappointment order is required because
he was denied his due process right to a trial and his due process right to be present at the
proceedings. We will not address these arguments given our conclusion that the
reappointment order must be reversed due to the improper terminating sanction.
                                               5
proceeding such as this one. The issue here is whether the trial court properly exercised
its authority within the confines of section 2032.410.
       Section 2032.410 states, in pertinent part: “If a party is required to submit to a
physical or mental examination under Articles 2 (commencing with Section 2032.210) or
3 (commencing with Section 2032.310) . . . , but fails to do so, the court, on motion of the
party entitled to the examination, may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . .” As
explained below, a review of the relevant statutory provisions and the record
demonstrates that G.H. was not required to submit to a mental examination, and that the
trial court therefore erred in sanctioning G.H. pursuant to section 2032.410.
       Section 2032.020 provides that any party “may obtain discovery . . . by means of
a physical or mental examination . . . in any action in which the mental or physical
condition . . . is in controversy in the action.” (§ 2032.020, subd. (a).) Section 2032.310,
subdivision (a) specifies that “the party shall obtain leave of court” to obtain discovery by
means of a mental examination. Section 2032.310, subdivision (b) provides that a
“motion for an examination under subdivision (a) shall specify the time, place, manner,
conditions, scope, and nature of the examination, as well as the identity and the specialty,
if any, of the person or persons who will perform the examination.”
       Section 2032.320, subdivision (a) states: “The court shall grant a motion for a
physical or mental examination under Section 2032.310 only for good cause shown.”
Section 2032.320, subdivision (d) provides: “An order granting a physical or mental
examination shall specify the person or persons who may perform the examination, as
well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and
nature of the examination.”
       The foregoing statutory provisions establish that a party must submit to mental
examination only upon court order. Here, the record shows that the trial court never

                                              6
issued an order that required G.H. to submit to a mental examination. Indeed, the Public
Guardian never even filed a motion seeking such a court order. Although the trial court
ruled that G.H. need not be brought to court if he declined to submit to a mental
examination, this ruling in no way constituted an order requiring G.H. to submit to a
mental examination. (See § 2032.320, subd. (d) [an order granting a mental examination
“shall specify . . . the time, place, manner, . . . conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of the person or persons who
will perform the examination”].) Section 2032.410 specifies that the trial court may issue
a sanction for failure to submit to a mental examination only if the sanctioned party is
“required to submit to a . . . mental examination.” (§ 2032.410, italics added.) Thus,
because the trial court never issued an order requiring G.H. to submit to a mental
examination, the trial court abused its discretion in sanctioning G.H. for his refusal to
submit to a mental examination. (See generally Lee v. Lee (2009) 175 Cal.App.4th 1553,
1559 [in order to impose a nonmonetary sanction, “[t]here must be a failure to comply
with a court order”].)
       The Public Guardian contends that the improper sanction does not necessitate
reversal of the order reappointing it conservator of G.H.’s person. Specifically, the
Public Guardian asserts that the sanction was not a terminating sanction, but instead a
mere evidence sanction that did not impact the trial court’s decision to grant the
reappointment petition. This argument is unpersuasive. An evidence sanction prohibits a
party “from introducing designated matters in evidence.” (§ 2023.030, subd. (c).) Here,
the sanction did not merely prohibit G.H. from introducing particular items into evidence.
Rather, the sanction terminated the matter in the Public Guardian’s favor: the written
sanction order specified that “[G.H.], as a consequence of his repeated non-compliance,
has forsaken his right to an evidentiary hearing and the re-appointment Petition is
granted.” We therefore must conclude that the sanction was a terminating sanction and

                                               7
not an evidence sanction. Because the trial court erroneously imposed this terminating
sanction against G.H., we must reverse the order reappointing the Public Guardian as
conservator of G.H.’s person.
                                     DISPOSITION
      The order reappointing the Public Guardian as conservator of G.H.’s person is
reversed.

                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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Trial Court:                                  Santa Clara County Superior Court
                                              Superior Court No.: 1-78 MH025600


Trial Judge:                                  The Honorable
                                              Thomas W. Cain



Attorneys for Defendant and Appellant         Julia Freis
G.H.:                                         under appointment by the Court
                                              of Appeal for Appellant




Attorneys for Plaintiff and Respondent        Orry P. Korb,
Santa Clara County Public Guardians Office:   County Counsel

                                              John S. Posthauer,
                                              Deputy County Counsel

                                              Mark Gonzalez,
                                              Lead Deputy County Counsel




Santa Clara County Public Guardians Office v. G.H.
H038826




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