San Diego County Department of Social Services v. Jones

I

n a conservatorship proceeding, jurisdiction is obtained through service of a citation and petition for conservatorship upon the proposed conservatee. (Welf. & Inst. Code, § 5350; Prob. Code, § 1824; Sacks v. Superior Court (1948) 88 Cal.App.2d 808 , 811 [ 199 P.2d 396 ]; see Code Civ. Proc., § 410.50.)

Here, proof of personal service upon Jones was supported by an affidavit signed by Marilyn Jones in which Marilyn, a social worker at Atascadero State Hospital where Robert Jones was committed at the time, declared she served Robert. Jones nevertheless contends the affidavit is inadmissible hearsay.

Arguably, Jones waived his right to contest personal jurisdiction by undertaking discovery.^[1] When a party initiates discovery and thereby makes a general appearance, he is precluded from later challenging the personal jurisdiction of the court. (Creed v. Schultz (1983) 148 Cal.App.3d 733 [ 196 Cal.Rptr. 252 ].) However, assuming Jones had not made a general appearance, the affidavit showing proof of service is not, as Jones argues, inadmissible hearsay. While the affidavit contains hearsay, it is exempted from the hearsay rule by Code of Civil Procedure section 2009. (See Evid. Code, § 1200, subd. (b).) Code of Civil Procedure section 2009 provides: “An affidavit may be used. . . to prove the service of a summons, . . ."

To this, Jones replies conservatorship proceedings are “quasi-criminal” in nature and consequently Code of Civil Procedure section 2009 has no application and, in any event, the hearsay exception effected by this section violates Jones’s constitutional right to confront witnesses against him. Assuming a conservatorship proceeding is, as Jones contends, a quasi-criminal action (see Conservatorship of Roulet (1979) 23 Cal.3d 219 , 224-225 [ 152 Cal.Rptr. 425 , 590 P.2d 1 ]), Code of Civil Procedure section 2009 is nevertheless applicable. Our Penal Code specifically provides: “The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code.” (Pen. Code, § 1102.) As Witkin notes: “. . . there is no separate law of evidence for criminal trials, and the

Moreover, Jones’s claim of an impaired right to cross-examine the affiant does not dissuade us from this conclusion. The due process protection inhering in the Sixth Amendment is: “. . . a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury, in order that they may look at him, and judge by his demeanor upon the stand, and the manner in which he gives his testimony, whether he is worthy of belief.” (Mattox v. United States (1895) 156 U.S. 237 , 242-243 [ 39 L.Ed. 409 , 411, 15 S.Ct. 337 ]; accord Ohio v. Roberts (1980) 448 U.S. 56 , 63-64 [ 65 L.Ed.2d 597 , 606, 100 S.Ct. 2531 ]; California v. Green (1970) 399 U.S. 149 , 157, 158 [ 26 L.Ed.2d 489 , 496, 497, 90 S.Ct. 1930 ].)

Jones cites no authority for entitlement to Sixth Amendment protection and we find none.^[2] Jones would nevertheless have us substitute “proposed conservatee” for “accused” in the above quotation and bar the affidavit as unconfronted hearsay. But this we cannot do. Even assuming the confrontation clause applies, a point we expressly do not decide, Jones’s claim of error does not fall within its scope. Here, Marilyn Jones, through her affidavit, declared only Robert Jones had been personally served with the citation and petition for conservatorship. She provided no evidence whatsoever regarding his alleged grave disability, which, in a Sixth Amendment sense, is “the charge against him.” Thus understood, the affidavit bore only on a peripheral procedural matter, not the gravamen of the conservatorship petition, and therefore did not implicate Jones’s assumed right to confront witnesses against him. The case of People v. Kirk (1952) 109 Cal.App.2d 203 [ 240 P.2d 630 ] illustrates this distinction. There, the defendant was convicted of three felonies and was imprisoned. While incarcerated, he sent a notice of appeal to the clerk of the superior court. Thereafter, the defendant moved the court to require the clerk to prepare the record on appeal. Based on oppositional affidavits from five deputy sheriffs assigned to the county jail, the trial court found the notice untimely and denied the motion.

However, even if this were not so, Jones’s failure to receive the conservatorship investigation report, on this record, does not require reversal. Jones equates the failed transmittal with an absence of jurisdiction. Yet, as previously discussed, the evidence indicates he was served with both the petition and citation for conservatorship documents capable, in themselves, of establishing the court’s jurisdiction. (See Code Civ. Proc., § 410.50, subd. (a); Prob. Code, §§ 1820, 1822, 1823, 1824; Welf. & Inst. Code, § 5350; Conservatorship of Ivey, supra, 186 Cal.App.3d 1559 , 1566; Sacks v. Superior Court, supra, 88 Cal.App.2d at p. 811.)

Further, a copy of the report was mailed to Jones’s appointed counsel.^[3] We find no reason, and Jones points to none, to conclude counsel did other than competently communicate and use the report information to zealously advocate Jones’s cause. As we concluded in Ivey: “Lacking any hint to the contrary, there is no reason to reverse an order that was made in a fair hearing.” (Conservatorship of Ivey, supra, 186 Cal. App.3d 1559 , 1566.) This conclusion is equally applicable here.

Disposition

The judgment is affirmed.

Butler, J., and Lewis, J., concurred.

Appellant’s petition for review by the Supreme Court was denied February 25, 1987.