Speculation sunday- ccp 170.6 for lps

USING AFFIDAVIT OF PREJUDICE AND PEREMPTORY CHALLENGES IN LPS CONSERVATORSHIP PROCEEDINGS
 
Currently LPS Conservatees have a right to six peremptory challenges under Conservatorship of Gordon. However, case law does not account for whether LPS conservatees have a right to file a motion under CCP § 170.6 for disqualification of a judge.
 
SUMMARY OF CCP § 170.6.
California Code of Civil Procedure § 170.6 allows a party to file an “affidavit of prejudice” to disqualify a judge without an order of proof/to show cause.  The affidavit of prejudice cannot be challenged by opposing counsel and the disqualification of the judge is automatic.
Only one peremptory challenge is allowed per side. A peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge under CCP §170.1.      
 
CCP § 170.6 may be raised if counsel believes that (1) the bench officer is prejudiced against the conservatee and his or her interest, and (2) that the conservatee cannot have a fair and impartial trial before that bench officer.
 
Special timelines apply to CCP § 170.6. The three rules fall under the The all-purpose assignment rule, The master calendar rule, and5/10 day rule.
 
However, LPS Conservatorship proceedings are special proceedings that are quasi criminal- civil proceedings, thus potentially complicating CCP § 170.6 timelines. Counsel could argue that LPS cases fall within the all purpose rule as the posting around MH court rooms state that they are all purpose courtrooms.
 
CCP § 170.6 has case law establishing its use in the dependency realm. However, no case law exists that explores the options of CCP § 170.6 under LPS statute.


Note:
LPS Conservatorship courts are far more limited in resources including bench officers than dependency so the actual application of CCP § 170.6 will be very limited by real life. This is a theoretical exploration of applying CCP § 170.6 to LPS Conservatorship!
 
PRESENTATION OF THE FACTS
 
In LPS Conservatorship matters, if the hospital opines that a patient is gravely disabled under Welf & I C § 5008 et seq, the doctor shall submit a petition requesting an LPS Conservatorship investigation begin. The doctor must complete a declaration or affidavit stating the reasons for the recommendation of conservatorship. If the doctor recommends an LPS conservatorship, the proposed conservatee may be held in the facility for up to 3 additional days beyond the 14-day period if the additional time is necessary for completing and filing a petition for temporary conservatorship and for the establishment of the temporary conservatorship by the court. Welf & I C §5352.3. Upon receipt of the doctor’s affidavit, the office of the public conservator shall send out an investigator to determine whether the patient is gravely disabled and in need of a temporary conservatorship.
 
When the county's conservatorship investigator agrees with the doctor’s recommendation, they must file a petition for an LPS conservatorship. They will ask that the court initiate a temporary conservatorship because involuntary treatment and placement is needed beyond the 14-day period for treatment and the conservatorship investigator is unable to complete their report in that time period.
 
Most counties will hold an ex parte hearing for the petition for appointment of a temporary conservator relying on the affidavit of the physician due to the time limits. Should the court decide to establish a temporary conservatorship, it may not to exceed 30 days. At the expiration of the 30-day period, the temporary conservatorship expires by operation of law unless the court has held a hearing on whether the proposed conservatee is gravely disabled and ordered a permanent 1 year conservatorship or the temporary conservatorship be extended no longer than 6 months due to a pending jury trial request per Welf & I C §5352.1. All the powers granted to a permanent conservator shall also be granted to a temporary conservator. The public guardian shall serve as the temporary conservator in most counties due to the short duration of the temporary conservatorship.
 
It is between the T-con and the P-con hearings that counsel could theoretically file a CCP § 170.6 motion and make the legal argument that a temporary conservatorship does not involve a binding judgement on the merits. If the trial court denies conservatee’s motion it could state that it had “made substantive rulings on the temporary conservatorship recently”. The court could state that it had made its temporary conservatorship findings which are the same as substantive findings in a normal case. Given this fact pattern, the conservatee if his motion is denied, he could file a writ of mandate within the deadline and have the court of appeal issue a remittitur ordering the trial court comply with the motion.
 
PROPOSED LEGAL ARGUMENT
A party may request file an affidavit of prejudice via a 170.6 motion if they raise it (1) within the time limits, (2) a substantive ruling has not been made by that judge, and (3) counsel makes the motion in proper form. Under the earlier fact pattern, conservatee alleges that the trial court committed prejudicial error when it denied their motion under CCP § 170.6.
 
I.               Conservatee’s Motion Was Filed Within the Statutory Deadline
 
Given the unique time limits of LPS Conservatorship, time limits will not be discussed here. If counsel raises the motion within the time limits and shows that other criteria are met, the bench officer can be immediately disqualified, and a new appointment mandatory.
 
II.             A Temporary Conservatorship is “temporary” lasting no more than 30 days unless exceptions apply
Counsel should recognize that a 170.6 motion filed even within the time deadlines does not end the timeliness inquiry. A timely challenge must be denied if the judge has presided at an earlier hearing which involved a determination of contested factual issues relating to the merits. Grant v. Superior Court, supra, 90 Cal.App.4th at p. 525. However, if that judge has
presided over a pretrial conference or other proceeding not involving a determination of contested fact issues relating to the merits, this fact shall not preclude the motion. Counsel must demonstrate that the ex parte temporary conservatorship hearing did not involve a final judgement on the merits.
 
Counsel should direct the appellate court’s attention to the fact that temporary conservatorship orders are “temporary” and that a final judgement on the merits is pending further determination at an upcoming hearing; the permanent conservatorship hearing.
 
When initiating an LPS Conservatorship, an ex parte hearing establishing a temporary 30 day conservatorship precedes either a bench hearing or a jury trial on the issue of whether a 1 year conservatorship is needed. The initial doctor’s declaration and petition are filed with the public conservator before any temporary conservatorship is established. If the investigator concurs with the doctor, then they may petition the court ex parte to establish a temporary conservatorship. A temporary conservatorship may not to exceed 30 days unless the court holds a hearing on whether the proposed conservatee is gravely disabled and orders a permanent 1 year conservatorship or the temporary conservatorship was extended no longer than 6 months due to a pending jury trial. All of the powers granted to a permanent conservator shall be granted during the course of the temporary conservatorship. The public guardian shall serve as the temporary conservator in most counties due to the short duration of the temporary conservatorship. Counsel could rely on these points to demonstrate there is sufficient proof that the ex parte hearing does not entail substantive final judgements on the merits thus permitting the filing of the 170.6 motion.
 
 
III.           At the Ex Parte Temporary Conservatorship Hearing the Trial Court Did Not Resolve Any Contested Fact Issue Relating to the Merits as there were no evidentiary procedural safeguards.
 
Conservatee’s counsel must demonstrate that the ex parte temporary conservatorship hearing does not involve a determination of contested fact relating to the merits of the hearing. The trial court can reject a 170.6 motion even if timeliness had been met citing that a timely peremptory challenge must be denied if the judge had presided at an earlier hearing that resulted in a determination of contested factual issues relating to the merits of the case. The trial court could opine that a judgement on the merits had transpired, and a substantive ruling made ordering the appointment of a temporary conservator. However, patient’s counsel could in turn argue that the orders made on record at the temporary conservatorship ex parte hearing were not substantive rulings. During the ex parte hearing, counsel could state that the trial court had not called any witnesses, not called the conservatee, relied on the court investigator’s report, and that no evidence other than the doctor’s initial declaration were presented. During LPS ex parte hearings, the bench officer shall only rely on the doctor’s declaration. Additionally, conservatee was not afforded a chance for cross examination under due process. Counsel could also reason that although Welf & I C is silent on the burden of proof at the ex parte temporary conservatorship hearing, it is presumed to be a lower standard of proof given the lack of formal procedural safeguards. During a temporary conservatorship hearing, the trial court rarely resolves conflicts in the evidence. Given the lack of evidentiary consideration counsel may reason that in determining a temporary conservatorship the judge did not resolve any contested fact issues relating to the merits of the case.
 
CONCLUSION
Should patient’s counsel prevail, the appellate court may rule that the trial court’s findings at the ex parte temporary conservatorship hearing were akin to a probable cause finding made at a preliminary detention hearing and counsel was not foreclosed from filing a motion under CCP § 170.6. The temporary conservatorship hearing did not involve the resolution of any contested issue of fact related to the merits and counsel having complied with the procedural prerequisites under CCP § 170.6 shall be entitled to relief via peremptory writ of mandamus in the first instance.
 
**This case mentions the application of Palma procedure. At this time no information is available regarding how Palma procedure would fit into LPS statutory scheme.
 
[“(1) the papers before us adequately address the issues raised by the petition; (2) no factual dispute exists; (3) additional briefing is unnecessary, and (4) there is a compelling temporal urgency”.]