Business record exception to hearsay- Conservatorship of S.A.
Conservatorship of S.A., 25 Cal. App. 5th 438, 235 Cal. Rptr. 3d 744, 2018 Cal. App.
In the matter of the conservatorship of S.A.. The conservatee appeals on the ground that a subpoena of her personal psychiatric records violated her constitutional rights and inadmissible hearsay was allowed in for the jury trial. The appellate court disagrees citing that all exceptions apply and the public conservator was within their rights.
Conservatee had over the last several years undergone many hospitalizations at PHF with several prior LPS conservatorships. At the reappointment petition, S.A. requested a jury trial. The court set a jury trial date 25 days out from the request pursuant to § 5350 (d). Prior to the trial, the public conservator served the conservatee with copies of the documents intended to be used as evidence for the trial. The conservatee filed a motion in limine to exclude case-specific hearsay and opinions of experts contained in said records (in re People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Public conservator responded to conservatee’s motion in limine with a subpoena to produce authenticated copies of the medical records and effectuated notice upon conservatee. The public conservator signed medical release authorizations on S.A.’s behalf. The records were subsequently produced.
The conservatee amended the motion in limine to object to the use of the records for failure to serve notice on time (see ref. Code Civ. Proc., § 1985.3 (b)(2)). Conservatee contends that the public conservator had no authority to release the records as they were (1) not the consumer or patient’s counsel, (2) the records lacked proper foundation as the conservatee did not know how they were prepared and produced, (3) they were subject to the protection of patient physician confidentiality, and (4) that her right to:
confront witnesses precludes any expert from relating case-specific facts or opinions of others in the records; and her right to due process would be violated if Public Guardian were permitted to “change hats” by using the records against her in an adversarial proceeding after obtaining them with its powers as her conservator.
The trial court responded to conservatee’s motion in limine stating that it would not allow experts to testify to case specific case hearsay. The trial court added that most of the materials in the case file would not fall under the psychotherapist patient privilege exception.
At the hearing on S.A.’s motion, the trial court said it would not allow experts to testify to case-specific hearsay not otherwise proved by admissible evidence, pursuant to Sanchez. 2 S.A. acknowledges that she did not raise the psychotherapist-patient privilege in the trial court and that “most of the material” in the records “would not fall under” that privilege. 4 It also accepted S.A.’s proposed redactions of conclusions, opinions, and remote or immaterial matters that she identified in the records. It otherwise overruled her objections, finding that the 10-day notice-to-consumer provision of Code of Civil Procedure section 1985.3 was not intended to apply to LPS proceedings; that Public Guardian was authorized by statute to sign the release of records and to waive S.A.’s privileges on her behalf; and that the records fall within the business records exception to the hearsay rule based on the custodians’ affidavits and the court’s review of the records.
The public conservator offered the medical records to help demonstrate the historical course of the mental illness. Jury instructions 4011 stipulate that:
You must consider information about the history of [name ofrespondent]’s alleged mental disorder if you believe this information hasa direct bearing on whether [he/she] is presently gravely disabled as aresult of a mental disorder. Such information may include testimonyfrom persons who have provided, or are providing, mental health orrelated support services to [name of respondent], [his/her] medicalrecords, including psychiatric records, or testimony from familymembers, [name of respondent], or any other person designated by [nameof respondent].
The appellate court found that the public conservator was authorized to use medical records for the purpose of determining historical course of mental illness.
The conservatee’s contention that the public conservator had incorrectly produced her consumer records was an incorrect basis on civil procedure § 1985.3 which stipulates that a consumer must be served notice 10 days before production of documents or the written authorization for release signed by “the consumer . . . or her attorney.” (Code Civ. Proc., § 1985.3, subds. (b) & (c).) The conservatee contends that the public conservators one day notice was improper. The appellate court agreed with the trial court that it was proper as LPS conservatorship cases are exempt from this rule. The trial court cited that in re Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 432 civil rules apply to consumer records in special proceedings of a civil nature. However, in this case the appellate court considered that this proceeding fell under the framework of a contested hearing with limited time therefore, these civil procedure rule 1985. 3 (b)(c) does not apply. Because the trial court needs to set a date 10 days from request and no more than 15 days if continued, there is not enough time for proper production and notice. The court furthers adds that the public conservator’s use and production of consumer records does not violate the section as the public conservator already has access to records as conservator over the person of conservatee pursuant to Welf and Inst Code § 5328 and Prob Code §§ 2351, 2355.
The court of appeals adds that the conservatee had 14 day’s notice of the public conservator’s proposed use of the records at trial. The conservatee was also granted an opportunity to
object in a written motion in limine, an amended motion in limine, and two lengthy court hearings on their admissibility. Technical compliance with Code of Civil Procedure section 1985.3 would have contributed nothing to the fairness of these LPS proceedings.
In regards to whether the public conservator abused its power by signing the release of information, the court cites how the conservatee relied on probate code where the exception to that lies within evidence code. Pursuant to Evid. Code, § 1158, subd. (b).) medical professionals may furnish documents without the express consent of the conservatee if the following is met: “written authorization . . . signed by . . . the . . . conservator of . . . her person or estate” and (Evid. Code, §§ 993, 1013) that mandate that a “conservator” is the “holder” of the psychotherapist-patient privilege and the physician-patient privilege “when the patient has a . . . conservator.”
To add the appellate court added that pursuant to Welf and Inst Code §5328, the information and records in LPS proceedings are exempt from confidentiality if (1) the conservator consents to their release, (2) the public conservator designates in writing that they may be used, and (3) the courts find it necessary to properly administer justice. Following this, the court found that the public conservator was properly authorized to release the records for use in the conservatorship proceedings.
Conservatee contends that the trial court violated her rights to privacy and due process when the trial court permitted the public conservator to use its power as conservator to obtain her records and use them against her. She cites Cal. Const., art. I, § 1 and states that she is not an incompetent ward of the state in re Riese v. St. Mary’s Hospital & Medical Center (1987) and that conservatees are allowed to retained to their rights pursuant in re. Edward W. v. Lamkins (2002) 99 Cal.App.4th 516. Conservatee further appeals that public conservator had an express duty to protect her rights and that it’s power was not unlimited. Conservatee adds that she is entitled to the same protection as in an initial proceeding in re. Conservatorship of Deidre B. (2010) 180 Cal.App.4th 1306, 1312 [“The reestablishment hearing is conducted according to the same rules that govern the initial establishment of a conservatorship”].)
The court contends that her rights were protected as the trial was not open to the public and the records sealed. The appellate court notes that the LPS act prevents her from controlling her medical records as the conservatorship prevents such. The public conservator has a duty to determine if the conservatee needs the services of an LPS conservator and should the conservatee appeal with a jury trial, the public conservator has a right to provide the jury with psychiatric records to determine what is appropriate. (Welf and Inst Code § 5008.2; CACI 4011.) The court found that public conservator had acted in her best interests. It also adds that the conservatee has safe guards against abuse of power:
Significant safeguards protected her against any misuse of Public Guardian’s powers: she had a right to counsel and to a unanimous jury finding based on proof beyond a reasonable doubt.
The conservatee erroneously cites in re. Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 447, as proof that her counsel was affected by the public conservator. The court rebuts stating that the public conservator did not interfere with her counsel’s decisions and that her counsel acted on her behalf.
the court held a conservator does not have the power to replace a conservatee’s court-appointed independent counsel with counsel the conservator selects, because to do so would “render her right to independent counsel meaningless.”
The conservatee cites in re. Conservatorship of Wendland (2001) 26 Cal.4th 519, 523-524, but the court found no connection as food and life sustaining means were not an issue at hand. The conservatee cites in re. M.L. (2012) 210 Cal.App.4th 1457, 1469-1470, a dependency case to demonstrate that evidence disclosed at the request of a conservator is not automatically admissible without case or statue based exception. The court strikes that objection by citing that pursuant Welf and Inst § 5328 is the applicable exception.
The conservatee contends that there was inadmissible hearsay contained within the reports. The conservatee cites Evidence code § 1200 (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible) and in re Cons of K.W. The appellate court cites Evid. Code, § 1271:
Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
The court again reminds that LPS contested trials fall under the business record exception.
The business records exception requires a foundational showing that (1) the writing was made in the regular course of business; (2) at or near the time of the act, condition, or event; (3) the custodian or other qualified witness testifies to its identity and mode of preparation; and (4) the sources of information and mode and method and time of preparation indicate trustworthiness. (Evid. Code, § 1271;
The appellate court also finds that the records furnished were reliably prepared and prepared in a timely manner soon after the events occurred. The records contained appropriate declarations from medical personal.
Conservatee contends that the affiants did not establish their personal knowledge of the mode of preparation because they use the wording “to the best of [their] knowledge”. The appellate court found it not necessary that the witness present that they have personal knowledge of every transaction; they only need only be familiar with the procedures. The conservatee contends that the record contained submissions from persons who may have not been direct observers but the court found that the record was sufficient as medical personal and psychiatric experts were filling out the reports.
“clearly the reports of persons and staff, licensed psychiatric technicians, . . . who are reporting [S.A.’s] observed conduct” and the board and care facility records were 13 “obviously the observations . . . of the people in the psychiatric program.”
The appellate court found that the public conservator laid a proper foundation based on the above reasons. The court also found that the psychiatrist’s testimony did not contain any hearsay as the expert witness proffered only case specific evidence that was admissible and relevant.
Here, the case-specific hearsay related by [expert witness] came from medical records that qualified for admission under the business records exception to the hearsay rule.
Because of these reasons laid before the appellate court affirmed the order and the public conservator was re-appointed conservator over the person of S.A.
Overview
HOLDINGS: [1]-In a proceeding to reappoint a public guardian as a conservator under the Lanterman-Petris-Short Act, the public guardian was authorized to subpoena records of the conservatee's care and treatment, sign an authorization for their release on her behalf, and then use the records adversely to her at trial to prove the historical course of her mental disorder, a matter the jury was required to consider based on her medical records as presented to the court, including psychiatric records, pursuant to Welf. & Inst. Code, § 5008.2, subd. (a), and the manner of production and use of the records did not violate the conservatee's constitutional and statutory rights; [2]-The conservatee's medical records, as redacted, were admissible under the business records exception to the hearsay rule to prove the acts, conditions, and events recorded therein.
Outcome
Order affirmed.
Conservatorship of S.A., 25 Cal. App. 5th 438, 235 Cal. Rptr. 3d 744, 2018 Cal. App.
In the matter of the conservatorship of S.A.. The conservatee appeals on the ground that a subpoena of her personal psychiatric records violated her constitutional rights and inadmissible hearsay was allowed in for the jury trial. The appellate court disagrees citing that all exceptions apply and the public conservator was within their rights.
Conservatee had over the last several years undergone many hospitalizations at PHF with several prior LPS conservatorships. At the reappointment petition, S.A. requested a jury trial. The court set a jury trial date 25 days out from the request pursuant to § 5350 (d). Prior to the trial, the public conservator served the conservatee with copies of the documents intended to be used as evidence for the trial. The conservatee filed a motion in limine to exclude case-specific hearsay and opinions of experts contained in said records (in re People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Public conservator responded to conservatee’s motion in limine with a subpoena to produce authenticated copies of the medical records and effectuated notice upon conservatee. The public conservator signed medical release authorizations on S.A.’s behalf. The records were subsequently produced.
The conservatee amended the motion in limine to object to the use of the records for failure to serve notice on time (see ref. Code Civ. Proc., § 1985.3 (b)(2)). Conservatee contends that the public conservator had no authority to release the records as they were (1) not the consumer or patient’s counsel, (2) the records lacked proper foundation as the conservatee did not know how they were prepared and produced, (3) they were subject to the protection of patient physician confidentiality, and (4) that her right to:
confront witnesses precludes any expert from relating case-specific facts or opinions of others in the records; and her right to due process would be violated if Public Guardian were permitted to “change hats” by using the records against her in an adversarial proceeding after obtaining them with its powers as her conservator.
The trial court responded to conservatee’s motion in limine stating that it would not allow experts to testify to case specific case hearsay. The trial court added that most of the materials in the case file would not fall under the psychotherapist patient privilege exception.
At the hearing on S.A.’s motion, the trial court said it would not allow experts to testify to case-specific hearsay not otherwise proved by admissible evidence, pursuant to Sanchez. 2 S.A. acknowledges that she did not raise the psychotherapist-patient privilege in the trial court and that “most of the material” in the records “would not fall under” that privilege. 4 It also accepted S.A.’s proposed redactions of conclusions, opinions, and remote or immaterial matters that she identified in the records. It otherwise overruled her objections, finding that the 10-day notice-to-consumer provision of Code of Civil Procedure section 1985.3 was not intended to apply to LPS proceedings; that Public Guardian was authorized by statute to sign the release of records and to waive S.A.’s privileges on her behalf; and that the records fall within the business records exception to the hearsay rule based on the custodians’ affidavits and the court’s review of the records.
The public conservator offered the medical records to help demonstrate the historical course of the mental illness. Jury instructions 4011 stipulate that:
You must consider information about the history of [name ofrespondent]’s alleged mental disorder if you believe this information hasa direct bearing on whether [he/she] is presently gravely disabled as aresult of a mental disorder. Such information may include testimonyfrom persons who have provided, or are providing, mental health orrelated support services to [name of respondent], [his/her] medicalrecords, including psychiatric records, or testimony from familymembers, [name of respondent], or any other person designated by [nameof respondent].
The appellate court found that the public conservator was authorized to use medical records for the purpose of determining historical course of mental illness.
The conservatee’s contention that the public conservator had incorrectly produced her consumer records was an incorrect basis on civil procedure § 1985.3 which stipulates that a consumer must be served notice 10 days before production of documents or the written authorization for release signed by “the consumer . . . or her attorney.” (Code Civ. Proc., § 1985.3, subds. (b) & (c).) The conservatee contends that the public conservators one day notice was improper. The appellate court agreed with the trial court that it was proper as LPS conservatorship cases are exempt from this rule. The trial court cited that in re Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 432 civil rules apply to consumer records in special proceedings of a civil nature. However, in this case the appellate court considered that this proceeding fell under the framework of a contested hearing with limited time therefore, these civil procedure rule 1985. 3 (b)(c) does not apply. Because the trial court needs to set a date 10 days from request and no more than 15 days if continued, there is not enough time for proper production and notice. The court furthers adds that the public conservator’s use and production of consumer records does not violate the section as the public conservator already has access to records as conservator over the person of conservatee pursuant to Welf and Inst Code § 5328 and Prob Code §§ 2351, 2355.
The court of appeals adds that the conservatee had 14 day’s notice of the public conservator’s proposed use of the records at trial. The conservatee was also granted an opportunity to
object in a written motion in limine, an amended motion in limine, and two lengthy court hearings on their admissibility. Technical compliance with Code of Civil Procedure section 1985.3 would have contributed nothing to the fairness of these LPS proceedings.
In regards to whether the public conservator abused its power by signing the release of information, the court cites how the conservatee relied on probate code where the exception to that lies within evidence code. Pursuant to Evid. Code, § 1158, subd. (b).) medical professionals may furnish documents without the express consent of the conservatee if the following is met: “written authorization . . . signed by . . . the . . . conservator of . . . her person or estate” and (Evid. Code, §§ 993, 1013) that mandate that a “conservator” is the “holder” of the psychotherapist-patient privilege and the physician-patient privilege “when the patient has a . . . conservator.”
To add the appellate court added that pursuant to Welf and Inst Code §5328, the information and records in LPS proceedings are exempt from confidentiality if (1) the conservator consents to their release, (2) the public conservator designates in writing that they may be used, and (3) the courts find it necessary to properly administer justice. Following this, the court found that the public conservator was properly authorized to release the records for use in the conservatorship proceedings.
Conservatee contends that the trial court violated her rights to privacy and due process when the trial court permitted the public conservator to use its power as conservator to obtain her records and use them against her. She cites Cal. Const., art. I, § 1 and states that she is not an incompetent ward of the state in re Riese v. St. Mary’s Hospital & Medical Center (1987) and that conservatees are allowed to retained to their rights pursuant in re. Edward W. v. Lamkins (2002) 99 Cal.App.4th 516. Conservatee further appeals that public conservator had an express duty to protect her rights and that it’s power was not unlimited. Conservatee adds that she is entitled to the same protection as in an initial proceeding in re. Conservatorship of Deidre B. (2010) 180 Cal.App.4th 1306, 1312 [“The reestablishment hearing is conducted according to the same rules that govern the initial establishment of a conservatorship”].)
The court contends that her rights were protected as the trial was not open to the public and the records sealed. The appellate court notes that the LPS act prevents her from controlling her medical records as the conservatorship prevents such. The public conservator has a duty to determine if the conservatee needs the services of an LPS conservator and should the conservatee appeal with a jury trial, the public conservator has a right to provide the jury with psychiatric records to determine what is appropriate. (Welf and Inst Code § 5008.2; CACI 4011.) The court found that public conservator had acted in her best interests. It also adds that the conservatee has safe guards against abuse of power:
Significant safeguards protected her against any misuse of Public Guardian’s powers: she had a right to counsel and to a unanimous jury finding based on proof beyond a reasonable doubt.
The conservatee erroneously cites in re. Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 447, as proof that her counsel was affected by the public conservator. The court rebuts stating that the public conservator did not interfere with her counsel’s decisions and that her counsel acted on her behalf.
the court held a conservator does not have the power to replace a conservatee’s court-appointed independent counsel with counsel the conservator selects, because to do so would “render her right to independent counsel meaningless.”
The conservatee cites in re. Conservatorship of Wendland (2001) 26 Cal.4th 519, 523-524, but the court found no connection as food and life sustaining means were not an issue at hand. The conservatee cites in re. M.L. (2012) 210 Cal.App.4th 1457, 1469-1470, a dependency case to demonstrate that evidence disclosed at the request of a conservator is not automatically admissible without case or statue based exception. The court strikes that objection by citing that pursuant Welf and Inst § 5328 is the applicable exception.
The conservatee contends that there was inadmissible hearsay contained within the reports. The conservatee cites Evidence code § 1200 (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible) and in re Cons of K.W. The appellate court cites Evid. Code, § 1271:
Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
The court again reminds that LPS contested trials fall under the business record exception.
The business records exception requires a foundational showing that (1) the writing was made in the regular course of business; (2) at or near the time of the act, condition, or event; (3) the custodian or other qualified witness testifies to its identity and mode of preparation; and (4) the sources of information and mode and method and time of preparation indicate trustworthiness. (Evid. Code, § 1271;
The appellate court also finds that the records furnished were reliably prepared and prepared in a timely manner soon after the events occurred. The records contained appropriate declarations from medical personal.
Conservatee contends that the affiants did not establish their personal knowledge of the mode of preparation because they use the wording “to the best of [their] knowledge”. The appellate court found it not necessary that the witness present that they have personal knowledge of every transaction; they only need only be familiar with the procedures. The conservatee contends that the record contained submissions from persons who may have not been direct observers but the court found that the record was sufficient as medical personal and psychiatric experts were filling out the reports.
“clearly the reports of persons and staff, licensed psychiatric technicians, . . . who are reporting [S.A.’s] observed conduct” and the board and care facility records were 13 “obviously the observations . . . of the people in the psychiatric program.”
The appellate court found that the public conservator laid a proper foundation based on the above reasons. The court also found that the psychiatrist’s testimony did not contain any hearsay as the expert witness proffered only case specific evidence that was admissible and relevant.
Here, the case-specific hearsay related by [expert witness] came from medical records that qualified for admission under the business records exception to the hearsay rule.
Because of these reasons laid before the appellate court affirmed the order and the public conservator was re-appointed conservator over the person of S.A.
Overview
HOLDINGS: [1]-In a proceeding to reappoint a public guardian as a conservator under the Lanterman-Petris-Short Act, the public guardian was authorized to subpoena records of the conservatee's care and treatment, sign an authorization for their release on her behalf, and then use the records adversely to her at trial to prove the historical course of her mental disorder, a matter the jury was required to consider based on her medical records as presented to the court, including psychiatric records, pursuant to Welf. & Inst. Code, § 5008.2, subd. (a), and the manner of production and use of the records did not violate the conservatee's constitutional and statutory rights; [2]-The conservatee's medical records, as redacted, were admissible under the business records exception to the hearsay rule to prove the acts, conditions, and events recorded therein.
Outcome
Order affirmed.