From My Other Blog – Because It’s Important – Mother Lacked Standing To Appeal Probate Court’s Conservatorship Decision Relating To Conservatee Son’s Rights – Conservatorship of Gregory D.

New California Case – In re Conservatorship of Gregory D. (California Court of Appeal, Second Appellate District, March 5, 2013, Case No. B237896).

From my other blog because this case is important – conservatorships take away personal liberties – I’m not saying that there shouldn’t be conservatorships – just that conservatorship decisions need to be carefully considered and due process is important.  My estate, trust and elder blog is http://californiaestatetrust.wordpress.com

Note: I will be further evaluating and reporting on the Court’s decision in this case as even if the decision is legally correct, the result seems wrong in the context of a conservatorship, a conservatee’s rights, the lack of certain factual findings, and the underlying action being one in equity.

Briefly, the Court held that the mother of an adult conservatee (the conservatee is the mother’s son) lacked standing to appeal the decision of the trial court (the probate court) relating to the son’s visitation terms, who would be providing care to the son, and the sharing of the son’s medical information with certain third parties.  Although the mother had standing to be involved in those proceedings at the probate court level, the mother lacked appellate standing because the mother’s claims on appeal related to her son’s rights or the deprivation of her son’s rights, not to any claim of injury to her own rights.

The Court held that the right to appeal is purely statutory.  Code of Civil Procedure section 902 defines “Who May Appeal” from a judgment.  Any party “aggrieved” may appeal from an adverse judgment.  The test is twofold — one must be both a party of record to the action and aggrieved to have standing to appeal.  One is considered “aggrieved” whose rights or interests are injuriously affected by the judgment.  Conversely, a party who is not aggrieved by an order or judgment has no standing to attack it on appeal.  Injurious effect on another party is insufficient to give rise to appellate standing.  A party cannot assert error that injuriously affected only nonappealing coparties.

“Linda’s opening brief raises the following assignments of error with respect to the November 18, 2011 order: (1) the visitation order, requiring Gregory to spend weekends with his parents, violates Gregory’s rights to liberty and privacy; (2) the order terminating My Life Foundation as the contracted provider of Gregory’s supported living services violated Gregory’s rights under the Lanterman Act (Welf. & Inst. Code, § 4500 et seq.) and was in excess of the court’s jurisdiction because there was no exhaustion of administrative remedies before My Life Foundation was replaced as Gregory’s provider; and (3) the order directing disclosure of Gregory’s records to his parents violates Gregory’s constitutional and statutory rights of privacy.”

The Court held that “Linda has not identified any of her own rights or interests which are injuriously affected by the November 18, 2011 order. Her assignments of error pertain solely to alleged deprivations of Gregory’s rights. However, Linda lacks standing to assert error that injuriously affects only Gregory, a nonappealing party. (Estrada, supra, 125 Cal.App.4th at p. 985.)”

The Court further held that “Linda’s status as Gregory’s concerned mother does not confer standing to appeal on his behalf. With respect to Linda’s role vis-à-vis Gregory, the July 2, 2009 order pursuant to settlement agreement contains the following recital: “’14. LINDA and JOSEPH agree that they shall not hold any title, occupation, or position in this matter, other than parent of GREGORY.'” (Italics added.) Gregory, an adult, is under the limited conservatorship of the Hitchmans. In addition, Gregory has his own counsel. He is represented by Attorney Gaulke, a court appointed attorney who is PVP counsel for the limited conservatee. Gregory declined to appeal from the November 18, 2011 order. Linda, who is not personally aggrieved by said order, lacks standing to assert error on Gregory’s behalf.”

More to follow . . . .

Dave Tate, Esq. (San Francisco)

Article – KPMG Audit Committee Institute, Governance Challenges, The 2013 Agenda & Risk Management

The KPMG Audit Committee Institute, governance challenges and the 2013 agenda including risk management, Click Here For Discussion.

A KPMG Survey, The Increasing Role Of General Counsel In Risk Managment

KPMG says that general counsel are being called upon to play a greater role in the running of companies, particularly in the management of risk.  See KPMG’s survey, Click Here For Survey.

Article – “Nightmare bacteria,” shrugging off antibiotics, on rise in U.S. – What Is Your Risk Appetite / Risk Tolerance?

A potentially scary topic to be sure – article discussing deadly bacteria resistant to antibiotics on the rise in hospitals, Click Here For Article.

What are your risk appetites and risk tolerances for this? Here is a link to a discussion by Norman Marks about risk appetite and risk tolerance, Click Here For Article. I assume that your tolerances aren’t very high.

But also compare the likelihood of occurrence in various different settings and over different patient groups, the seriousness of an occurrence in various different settings and over different patient groups, the effectiveness of treatments available if an occurrence happens and the likely timely awareness of the occurrence, the current safety processes in place, the additional safety processes possible, the likely effectiveness of the additional safety processes possible, and the costs and trade-offs for all of the above. In many or most situations it is seldom or seldom practical that all risks or the possibilities of all risks can be absolutely eliminated.

Just food for critical thought on topics that relate to legal, risk and governance topics.

Dave Tate, Esq. (San Francisco)

New Articles – Finding Trial Themes On A Dime, Litigation Graphics Lessons

Finding trial themes on a dime – worth a reminder, Click Here For Article.

Litigation graphics lessons – interesting discussion about a video that went viral, Click Here For Article.

New Articles – California Discovery Changes Including ESI, Improving Information Risk Management, Digital Evidence

January 1, 2013 changes to California discovery rules including deposition length, privilege logs and discovery of ESI, Click Here For Article.

Steps to improve information risk management, Click Here For Article.

Digital evidence, its value, use and loss, Click Here For Article.

$2.8 Million Award For Computer Assisted Review Fees

An interesting post, re court awarding $2.8 million for computer assisted document review fees (District Court, Southern District of California, Click Here For Discussion.

Norman Marks’ Discussion About Risk and Uncertainty

The following link is to a new discussion by Norman Marks about risk and uncertainty, Click Here For Discussion. Norman is one of the best writers about risk and internal audit topics – he is knowledgeable and experienced, and he writes in a manner that is understandable for ordinary people. I prefer using the “uncertainty” terminology; however, it is more important to get all people within an organization (including executives, the board and its committees, mid-management, and the other employees) to think critically about risk or uncertainty, however it is referenced.

Dave Tate, Esq. (San Francisco)

BBC Article – Suit v. Anheuser Over Alcohol Content

An article from the BBC states that lawsuits filed against Anheuser-Busch InBev in Pennsylvania, California and other states claim that consumers have been cheated out of the alcohol content stated on beer labels. Click Here For Article.

Preliminarily, assuming that the relevant law is clear and unambiguous, and, for the sake of discussion, that the Complaint contains sufficient specificity detailing the alleged corporate unlawful wrongdoing, i.e., what the alcohol content should be, what the alcohol content is, and the alleged facts/evidence and specific relevant law detailing the allegations of unlawful actions or representations, it should be fairly easy to determine the range of likelihood whether any unlawful act has occurred, defenses to the allegations, and the range of damages if in fact any damages exist.

However, additionally, if I’m Anheuser (its board, executive officers, risk and quality control officers, and perhaps internal audit), I want to get to the bottom of this quickly – and also evaluate possible remedies for defamation or perhaps abuse of process or malicious prosecution if the allegations of unlawful conduct are unsupported.

Dave Tate, Esq. (San Francisco)