Judge: John B. Scherling, Case: 37-2022-00038004-PR-CP-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - December 14, 2023

12/15/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Probate  Conservatorship Of Person And Estate Motion Hearing (Probate) 37-2022-00038004-PR-CP-CTL CONSERVATORSHIP OF LOUIS ALPINIERI [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/08/2023

Pursuant to Superior Court of San Diego County Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Mental Examination (ROA 85) filed by Steven Alpinieri is GRANTED.

I. Background Louis J. Alpinieri ('Louis') and Brenda L. Alpinieri ('Brenda'), as trustors and original co-trustees, established the 1987 Alpinieri Living Trust under a Declaration of Trust dated June 27, 1987, which was restated on January 22, 2011. Louis and Brenda had two children: Steven J. Alpinieri ('Steven') and Andrea Alpinieri ('Andrea').

On September 26, 2022, Steven filed a Petition for Appointment of Probate Conservator over the Person and Estate of Louis ('Petition'). (ROA 1.) The Petition alleges that Louis lacks the mental capacity to provide for his personal needs and to manage his own finances or make his own health care decisions, and that Louis is being controlled, isolated, and unduly influenced by Andrea. (ROA 1, at p. 5.) In the related case of In the Matter of the Durable Power of Attorney for Health Care of Louis J. Alpinieri dated March 26, 2017, Case No. 2021-29236, on July 7, 2021, Steven filed a Petition for Order Determining that the Acts of Andrea Alpinieri as Agent Under Durable Power of Attorney for Health Care are not Consistent with the Expressed Desires of Louis Alpinieri and for Removal of Andrea Alpinieri as Agent ('Petition'). This Petition alleges that Andrea is acting under a durable power of attorney for health care executed by Louis; Louis is mentally compromised and may not have understood when he named Andrea as his agent; Andrea is unduly influencing Louis; Andrea has isolated Louis from Steven and his family; Steven's attempts to have contact with Louis have been thwarted by Andrea and the caregivers she has hired to monitor and control Louis; and Andrea has ordered the caregivers to enforce the isolation of Louis.

On June 8, 2023, Steven filed the instant Motion for Mental Examination for an order requiring Louis, the proposed conservatee, to submit to a mental examination by Dr. Valerie Rice to be conducted on the first available date after the order, at Louis' residence, on the grounds that Louis' mental condition is at issue in this action and good cause exists for the examination under CCP § 2032.020. (ROA 85.) On October 16, 2023, Andrea, as an agent under Power of Attorney for Louis, filed an opposition to the motion. (ROA 97.) Calendar No.: Event ID:  TENTATIVE RULINGS

3045704 CASE NUMBER: CASE TITLE:  CONSERVATORSHIP OF LOUIS ALPINIERI [IMAGED]  37-2022-00038004-PR-CP-CTL On October 19, 2023, Andrea, individually, filed an opposition to the motion. (ROA 100.) On October 20, 2023, Steven filed a reply. (ROA 102.) On October 27, 2023, the Court continued the motion to allow supplemental filings. (ROA 108, Minute Order filed Oct. 27, 2023.) On November 2, 2023, Steven filed a Demand for Capacity Assessment of Proposed Conservatee by Dr. Valerie Rice, along with Dr. Rice's declaration. (ROA 114, 115.) On November 21, 2023, Andrea filed a response to the demand, refusing to comply on Louis' behalf and objecting to the motion to compel. (ROA 125.) On December 6, 2023, Steven filed a request for judicial notice. (ROA 126.) On December 11, 2023, Louis filed a joinder to Andrea's opposition. (ROA 128.) II. Discussion A. Argument Steven argues that he has alleged sufficient facts showing Louis' lack of capacity but because Steven has been prevented by Andrea from having any contact or communication with Louis, Steven has been unable to arrange for an examination of Louis in order to provide his own capacity declaration.

Steven argues that he anticipates Andrea will continue to interfere with his ability to obtain additional evidence of Louis' incapacity and prevent an independent mental examination of Louis. Steven further argues that, since he has presented sufficient evidence of Louis' incapacity but is unable to provide a capacity declaration, and because Andrea and Louis continue to assert that Louis has capacity, thereby putting capacity at issue in this proceeding, good cause exists to order a mental examination of Louis to resolve this issue.

In opposition, Andrea argues a mental exam is not warranted because '[n]o one has alleged, undeniably because there is no basis to do so, that Louis suffers from a major neurocognitive disorder. Indeed, Louis does not.' (ROA 97, Oppo. at p. 1.) Andrea proceeds to distinguish dementia from traumatic brain injury, which she argues can improve over time. Andrea claims that as a result of medical care and rehabilitation, Louis experienced significant improvements in his condition, and 'Louis' physicians and caregivers, without exception, confirm that Louis is able to, and does, direct his own finances and make his own medical decisions.' (Id., at p. 2.) B. Compliance with the Rules of Court As a preliminary matter, the Court notes that Steven's request for judicial notice (ROA 126), filed on December 6, 2023, and Louis' joinder to Andrea's opposition (ROA 128), filed on December 11, 2023, are untimely pursuant to CCP § 1005(b).

The Court's order on October 27, 2023, continuing the motion clearly informed the parties that supplemental briefing was to be filed according to CCP § 1005(b). Yet the parties filed documents after their respective deadlines to do so had passed.

Thus, the Court will disregard Steven's request for judicial notice and Louis' joinder to opposition, which fail to comply with CCP § 1005(b) and CRC 3.1300(a).

The parties are admonished that compliance with all applicable rules and statutes is mandatory. The Calendar No.: Event ID:  TENTATIVE RULINGS

3045704 CASE NUMBER: CASE TITLE:  CONSERVATORSHIP OF LOUIS ALPINIERI [IMAGED]  37-2022-00038004-PR-CP-CTL parties are expected to comply with the future.

C. Motion to Compel Any party may obtain discovery, subject to certain restrictions, 'by means of a physical or mental examination of (1) a party to the action ..., in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action. (CCP § 2032.020(a).) If any party desires to obtain discovery by a mental examination, the party must obtain leave of court.

(CCP § 2032.310(a).) A motion for 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.' (CCP § 2032.310(b).) A meet and confer declaration under Section 2016.040 is required. (CCP § 2032.310(c).) 'The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.' (CCP § 2032.320(a).) To show 'good cause,' the moving party must demonstrate relevance, specific facts showing the need for the information, and the lack of means for obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840.) An order granting a 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.' (CCP § 2032.320(d).) Here, Louis' mental capacity is a material issue in this case, as well as in the related Trust matter, and highly contested by the parties. By his own allegations and the fact that Steven has not been able to submit a declaration of capacity, Steven has established good cause for granting this request for Louis to submit to a mental exam.

Andrea's arguments that there are no allegations that Louis suffers from a neurocognitive disorder or that Steven has generally not provided any evidence in support of his petition or evidence in compliance with the requirements of Probate Code § 810 et seq. (that Louis lacks the capacity to make his own decisions) put the cart before the horse.

The medical exam is necessary because the parties dispute Louis' capacity and thus, capacity is a triable issue placed in controversy by the parties' allegations and evidence. Further, Steven has a right to discovery by mental examination of Louis, independent of Andrea's evidence to the contrary. The Court's finding of lack of capacity indeed must be based in Probate Code § 811, but a medical diagnosis by an expert will clearly aid in the determination. Steven is not suggesting, nor does the Court interpret the motion as requesting, that the Court rule on the issue of Louis' capacity based on a medical diagnosis provided by Steven. In effect, Andrea's evidence of Louis' capacity directly places at issue Louis' capacity, and thus, it cannot be disputed that Louis' capacity is a matter in controversy and a mental exam is permitted as part of the discovery process under CCP § 2023.020. There is no requirement in the relevant statutes that Steven must first produce evidence of incapacity in order to obtain leave of Court to conduct a mental exam of a party to the action. Further, the motion itself is not seeking a determination of Louis' mental capacity or to establish a conservatorship; it is only seeking leave to conduct a mental exam. Thus, Andrea's arguments with respect to AB1663 and conservatorships are unavailing and immaterial for resolution of the instant motion.

As instructed in the Court's October 27th order, Steven filed a demand for exam, setting forth the terms and conditions under which the mental exam will be conducted, in compliance with CCP § 2032.310(b).

(ROA 114, Demand.) The prior order also authorized the parties 'to file supplemental responsive pleadings limited, however, to addressing those specific issues.' In this regard, Andrea filed a supplemental declaration, but the declaration does not address the specific issues in the demand, and only objects to the examination on privacy and other grounds. Thus, the Court assumes that Andrea has no objection to the terms and conditions set forth in the demand.

Therefore, the motion to compel is GRANTED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3045704 CASE NUMBER: CASE TITLE:  CONSERVATORSHIP OF LOUIS ALPINIERI [IMAGED]  37-2022-00038004-PR-CP-CTL The parties are instructed to meet and confer regarding a date for the mental examination of Louis, to be conducted as set forth in the demand (ROA 114).

Counsel for Steven is ordered to serve written notice of ruling on all parties in accordance with the provision of CCP §1019.5(a).

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3045704