Speculation sunday- How Could Counsel Address Contra Costa Not Allowing Private LPS Conservators

How Could Counsel Address Contra Costa Not Allowing Private LPS Conservators

For this analysis I shall be drawing primarily from the following legal authorities: In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr. 3d 783 (2019); Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434; and People v. Karriker, 149 Cal. App. 4th 763, 57 Cal. Rptr. 3d 412 (2007)
 
To consider the issue of whether Contra Costa should be allowed to completely bar private conservators, the courts should consider the legal authority that promulgates the notion that courts can establish local rules. The trial courts possess inherent rulemaking authority as well as rulemaking authority as granted by statute. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941. Per statue(?)trial courts hold inherent power to exercise reasonable control over all proceedings to ensure the administration of justice.
 
However, the trial court’s power to establish and uphold local rules shall not be in conflict current local rules, statutes, case law, and rules of court per the Judicial Council In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr.
 
Currently Welf & I C §5355 states that
If the conservatorship investigation results in a recommendation for conservatorship, the recommendation shall designate the most suitable person, corporation, state or local agency or county officer, or employee designated by the county to serve as conservator.  No person, corporation, or agency shall be designated as conservator whose interests, activities, obligations or responsibilities are such as to compromise his or her or their ability to represent and safeguard the interests of the conservatee.  
 
In this case it could be argued that per the code, the only restriction provided is that no one can be appointed “whose interests, activities, obligations or responsibilities are such as to compromise his or her ability to represent and safeguard the interests of the conservatee”.
 
Additionally, Welf & I C §5350(b)(1) sets forth that
The appointment of a conservator is subject to the priority list set out in Prob C §1812, of persons who can serve as conservator, unless the conservatorship investigator recommends otherwise. A family member is preferred, if qualified to act.
 
Under Conservatorship of Walker, 206 Cal. App. 3d 1572, 254 Cal. Rptr. 552 (Ct. App. 1989), the conservatorship investigator must also investigate whether family members are willing and able to serve as conservator, even if they are unwilling to house the conservatee in their homes.
 
Given this controlling authority, it seems that the court imposing its own local rule barring private LPS Conservators entirely would fall under an abuse of its inherent rule making authority.
 
In the Harley C court, it found that in promulgating local rules the trial courts must balance the need to maintain control over the pace of litigation and the need to decide cases on their merits rather than on procedural issues. When the court finds itself in a situation when the two “needs” conflict the court ought to favour a disposition on the merits over the need for judicial efficiency.
 
 
In this hypothetical scenario, should the trial court in the absence prior litigation abuse, issue an order based on a local rule that runs contrary to the controlling authority under Welfare and Institutions Code, the failure to consider a private LPS Conservator, it is an abuse of discretion.
 
However, LPS differs from dependency litigation in that under Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434; Kaplan v. Superior Ct., 216 Cal. App. 3d 1354, 1356, 265 Cal. Rptr. 408, 409 (Ct. App. 1989); and People v. Karriker, 149 Cal. App. 4th 763, 57 Cal. Rptr. 3d 412 (2007), the public guardian holds the sole discretion to file for LPS Conservatorship and the decision to file for LPS Conservatorship cannot be compelled by mandamus.
The discretion to file a petition for the appointment of an LPS conservator is vested in the sole discretion of the conservatorship investigator. West's Ann.Cal.Penal Code § 1370; West's Ann.Cal.Welf. & Inst.Code § 5351 et seq.
 
 
Should the trial court initiate a judicial proceeding to compel the public guardian to act against its discretion a writ of prohibition is an appropriate remedy. In the Kaplan court, the appellate court stated that:
We shall therefore order a writ of prohibition to issue barring respondent superior court from taking any further action in the underlying proceeding to appoint a conservator, except to dismiss it. Kaplan v. Superior Ct., 216 Cal. App. 3d 1354, 1356, 265 Cal. Rptr. 408, 409 (Ct. App. 1989)
 
By extension most courts have extended this logic to all public guardian decisions. Most courts consider that the public guardian’s legal authority cannot be challenged via collateral attacks or any other motion. For example, in San Diego County, if the public conservator does not want to appoint a private conservator, there shall be no additional evidentiary hearing or contested hearing on behalf of the proposed private LPS Conservator.
 
Counsel in potentially addressing Contra Costa’s local rule could raise Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434 which found that although the trial court may not issue an order compelling the public guardian to perform its duties in a certain way, it may review the public guardian’s decision to not file for LPS Conservatorship to ensure it comports with the directives of Welfare and Institutions Code.
 
The trial court may review administrative agency's action to determine whether it is arbitrary, capricious, or entirely without evidentiary support, contrary to public policy, or procedurally unfair or unauthorized by law. [cite]
 
 
As mentioned earlier, Welf & I C §5355 states that
If the conservatorship investigation results in a recommendation for conservatorship, the recommendation shall designate the most suitable person, corporation, state or local agency or county officer, or employee designated by the county to serve as conservator.  No person, corporation, or agency shall be designated as conservator whose interests, activities, obligations or responsibilities are such as to compromise his or her or their ability to represent and safeguard the interests of the conservatee.  
 
 
The Karriker court does not directly answer the question of whether a public guardian's refusal to establish an LPS conservatorship might be reviewed as an abuse of discretion, so the Kennebrew opinion serves to answer this question.
 
Because Welf & I C § 5355 implies that the public guardian is to investigate all potential LPS Conservators, Contra Costa’s local rule barring appointment of any private LPS Conservators is unduly prejudicial and favours judicial expediency over deciding a case on the merits. As stated in In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr. 3d 783 (2019),
Court procedures [and local rules], however well-intentioned, should not be imposed at the expense of the parties' basic rights to have their matters fairly adjudicated.
 
 
 
For the above reasons, counsel could request review of the public guardian’s refusal to consider private LPS Conservators in an attempt to ensure the agency performs its official act as required by LPS provisions. Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434