1

E072813

[Superior Court Case No. MCP1100783]

In The Court of Appeal, State of California

FOURTH APPELLATE DISTRICT

DIVISION TWO

_______________

Conservatorship of RYAN MORRIS, Conservatee

_______________

RYAN MORRIS,

Respondent and Appellant

vs.

RONALD MOORE,

Petitioner and Respondent

_______________

Appeal From the Superior Court of the State of California

for the County of Riverside

Honorable Sunshine S. Sykes, Judge Presiding

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APPELLANT’S OPENING BRIEF

_______________

MARK J. ANDREW FLORY (Bar No. 241851)

mflory@brownwhitelaw.com

JACK B. OSBORN (Bar No. 230447)

josborn@brownwhitelaw.com

BROWN WHITE & OSBORN LLP

300 East State Street, 3rd Floor

Redlands, California 92373

Tel: (909) 798-6179

Fax: (909) 798-6189

Attorneys for Respondent and Appellant, Ryan Morris

Court of Appeal, Fourth Appellate District, Division TwoKevin J. Lane, Clerk/Executive Officer

Electronically RECEIVED on 6/9/2020 on 7:15:37 PM

Court of Appeal, Fourth Appellate District, Division TwoKevin J. Lane, Clerk/Executive Officer

Electronically FILED on 6/9/2020 by R. Hance, Deputy Clerk

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Cal. Rules of Court, Rule 8.208)

There are no interested entities or persons to list in this

certificate. (Cal. Rules of Court, Rule 8.208(e)(3).)

DATED: June 9, 2020 BROWN WHITE & OSBORN LLP

By

s/Mark J. Andrew Flory

Mark J. Andrew Flory Attorneys for Appellant,

RYAN MORRIS

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Table of Contents

I. INTRODUCTION ................................................................... 8

II. STATEMENT OF APPEALABILITY ................................... 9

III. QUESTIONS PRESENTED ................................................... 9

IV. PROCEDURAL HISTORY .................................................. 10

V. STATEMENT OF PERTINENT FACTS ............................. 11

VI. LEGAL ARGUMENT .......................................................... 15

A. Applicable Standards of Review ................................ 15

B. The Trial Court Erred when it Imposed Duties on the

Conservator for Powers that were not Granted to the

Conservator but were Reserved to the Limited

Conservatee. ............................................................... 17

C. The Trial Court Erred when it Allowed Evidence and

Made Findings as to the Limited Conservatee’s

Capacity to Marry, without the Issue of the Limited

Conservatee’s Capacity being properly before the

Court? ......................................................................... 20

D. The Trial Court Erred when it Failed to Apply “Clear

and Convincing Evidence” as the Standard of Proof for

Removal of a Conservator. ......................................... 26

VII. CONCLUSION ..................................................................... 29

VIII. CERTIFICATE OF COMPLIANCE RE LENGTH OF BRIEF .................................................................................... 30

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Table of Authorities

Cases

Addington v. Texas, (1979) 441 U.S. 418, 425, 432–433 [99 S.Ct. 1804, 60

L.Ed.2d 323] ............................................................................................ 27

Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster

(1997) 52 Cal.App.4th 1165 .................................................................... 15

Barnett v. Delta Lines, Inc. (1982) 137 Cal. App. 3d 674 .......................... 15

Blank v. Kirwan (1985) 39 Cal.3d 311 ........................................................ 16

Brown v. Grimes (2011) 192 Cal.App.4th 265............................................ 15

California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc.

(1983) 143 Cal.App.3d 419 ..................................................................... 15

California Teachers Ass'n v. San Diego Comm. College Dist. (1981) 28

Cal. 3d 692 ............................................................................................... 15

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287 ......................... 16

Conservatorship of Presha (2018) 26 Cal.App.5th 487 .............................. 15

Conservatorship of Sanderson (1980) 106 Cal.App.3d 611 ....................... 26

Conservatorship of Wendland (2001) 26 Cal.4th 519 ................................. 27

Crocker National Bank v. City & County of San Francisco (1989) 49

Cal.3d 881 ................................................................................................ 15

Denham v. Superior Court (1970) 2 Cal.3d 557 ......................................... 16

Ghirardo v. Antonioli (1994) 8 Cal.4th 791 ................................................ 15

Horsford v. Board of Trustees of California State University (2005) 132

Cal.App.4th 359 ....................................................................................... 16

In re Clarissa H. (2003) 105 Cal.App.4th 120 ............................................ 15

In re Gilmaker’s Estate (1962) 57 Cal.2d 627 ............................................ 16

In re Guardianship of Brock (1957) 154 Cal.App.2d 431 .......................... 21

In re Marriage Cases (2008) 43 Cal.4th 757 .............................................. 27

In re Marriage of Greenway (2013) 217 Cal.App.4th 628 ................... 22, 23

5

In re Sherman’s Guardianship (1940) 42 Cal.App.2d 251 ......................... 21

International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606

................................................................................................................. 15

Jones v. Stubbs (1955) 136 Cal.App.2d 490 ............................................... 16

Obergefell v. Hodges (2015) 576 U.S. 644 [135 S.Ct. 2584, 2591] ........... 27

Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288 ....... 23

People v. Carmony (2004) 33 Cal.4th 367 .................................................. 16

Rathburn v. Rathburn (1956) 138 Cal.App.2d 568 ..................................... 22

Santosky v. Kramer (1982) 455 U.S. 745, 753, 769–770 [102 S.Ct. 1388, 71

L.Ed.2d 599] ............................................................................................ 27

Sargon Enterprises, Inc. v. University of Southern California (2012) 55

Cal.4th 747 .............................................................................................. 16

Stratton v. First National Life Ins. Co. (2nd Dist. 1989) 210 Cal. App. 3d

1071 ......................................................................................................... 15

Strauss v. Horton (2009) 46 Cal.4th 364 ..................................................... 27

Topanga & Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775

................................................................................................................. 15

Woo v. Superior Court (2000) 83 Cal.App.4th 967 .................................... 15

Woodby v. Immigration Service (1966) 385 U.S. 276, 285 [87 S.Ct. 483, 17

L.Ed.2d 362] ............................................................................................ 27

Statutes

Civ. Code, § 1556 ........................................................................................ 22

Code Civ. Proc., § 904.1, subd. (a)(10) ......................................................... 9

Evid. Code, § 730 ...................................................................... 11, 13, 14, 24

Fam. Code, § 300, subd. (a) ........................................................................ 22

Prob. Code, § 1300, subd. (g) ........................................................................ 9

Prob. Code, § 1801 ...................................................................................... 22

Prob. Code, § 1801, subd. (d) ................................................................ 19, 23

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Prob. Code, § 1801, subd. (e) ...................................................................... 26

Prob. Code, § 1801, subds. (d) & (e) ........................................................... 26

Prob. Code, § 1872 ...................................................................................... 23

Prob. Code, § 1881 ...................................................................................... 22

Prob. Code, § 1900 ................................................................................ 21, 22

Prob. Code, § 1901, subd. (b) ...................................................................... 23

Prob. Code, § 2351.5, subd. (b) ................................................................... 17

Prob. Code, § 2351.5, subd. (b)(1) .............................................................. 18

Prob. Code, § 2351.5, subd. (b)(2) .............................................................. 18

Prob. Code, § 2351.5, subd. (b)(3) ........................................................ 18, 23

Prob. Code, § 2351.5, subd. (b)(4) .............................................................. 18

Prob. Code, § 2351.5, subd. (b)(5) .............................................................. 18

Prob. Code, § 2351.5, subd. (b)(6) ........................................................ 18, 23

Prob. Code, § 2351.5, subd. (b)(7) .............................................................. 18

Prob. Code, § 2351.5, subd. (c) ............................................................. 24, 27

Prob. Code, § 2351.5, subd. (d) ................................................................... 24

Prob. Code, § 2650 ................................................................................ 20, 21

Prob. Code, § 2650, subd. (i) ....................................................................... 21

Prob. Code, § 2650, subds. (a), (b) & (h) .................................................... 20

Prob. Code, § 3201 ...................................................................................... 22

Prob. Code, § 3204 ...................................................................................... 22

Prob. Code, § 810 ........................................................................................ 23

Prob. Code, § 810, subd. (a) ........................................................................ 22

Prob. Code, § 810, subd. (b) ........................................................................ 22

Prob. Code, § 811 ........................................................................................ 22

Prob. Code, §§ 1810-1811 ........................................................................... 19

Prob. Code, §§ 2650-2655 ........................................................................... 20

Prob. Code, §§ 810-813 ............................................................................... 22

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Constitutional Provisions

U.S. Const., 14th Amend. ...................................................................... 27, 28

Other Authorities

Cal. Law Revision Com. com. 52A West's Ann. Prob. Code (2013 ed.) foll.

§ 1900, p. 280 ......................................................................................... 23

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I. INTRODUCTION

Appellant, Ryan Morris (“Appellant” or “Ryan”) is an adult with

several disabilities including cerebral palsy, schizophrenia, autism and

cognitive delay. He is a consumer with Inland Regional Center. Ryan is

ambulatory, verbal, and able to communicate his wishes and needs.

Through most of his childhood and early adulthood, Ryan had almost no

contact with his biological family. Appellant is a limited conservatee

pursuant to an order of the Superior Court of California, County of

Riverside in this matter.

Sean Spicer is the husband of Ryan and is the (suspended) limited

conservator of the person of Ryan.

Respondent, Ronald Moore, is the biological twin brother of Ryan.

Throughout the proceedings below, Ryan has maintained that he

wants his husband, Sean Spicer, to remain as his limited conservator, and

that he wants to continue living with his husband, Sean Spicer.

Ryan’s husband, Sean Spicer, was appointed as limited conservator

of the person of Ryan Morris on October 28, 2015. The order for limited

conservatorship did not restrict the limited conservatee’s power to consent

or withhold consent to marriage, and to control his own social and sexual

contacts and relationships.

On March 9, 2016, less than 6 months after he was in support of the

appointment of Sean Spicer as limited conservator, Ronald Moore filed a

subsequent petition to remove Mr. Spicer as limited conservator.

Ryan objected and opposed the petition to remove his husband, Sean

Spicer, as his limited conservator. On May 17, 2019, after a bench trial, the

Court granted the petition and made an order removing Sean Spicer as

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conservator. The May 17, 2019 order appointed the Riverside County

Public Guardian’s Office as temporary conservator and ordered that Ryan

be immediately removed from his home that he shared with his husband

and placed in a care facility.

Ryan appealed.

Ryan submits that the trial court erred by imposing duties on

the conservator that were withheld and reserved to the conservatee, by

allowing evidence and making findings as the limited conservatee’s

capacity without the issue of the limited conservatee’s capacity being

properly before the court, and by failing to make findings by clear and

convincing evidence before making an order to remove the conservator.

Accordingly, the trial court’s judgment must be reversed.

II. STATEMENT OF APPEALABILITY

This is an appeal from the Court’s Ruling on Petition to Remove

Sean Spicer as Conservator over Ryan Morris entered on May 17, 2019.

The order is appealable pursuant to Probate Code section 1300, subdivision

(g), and Code of Civil Procedure section 904.1, subdivision (a)(10).

III. QUESTIONS PRESENTED

1. Did the trial court decide correctly when it imposed duties on the

conservator for powers that were reserved to Ryan, the conservatee?

2. Did the trial court err when it allowed evidence and made findings as

to the limited conservatee’s capacity, without the issue of the limited

conservatee’s capacity being properly before the court?

3. Did the trial court err when it failed to make findings by clear and

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convincing evidence prior to making an order removing the

conservator?

IV. PROCEDURAL HISTORY

On October 28, 2015, Sean Spicer, Ryan’s husband, was appointed

as successor limited conservator of the person of Ryan Morris, the appellant

herein. (CT 1:65) On March 9, 2016, Ronald Moore, (“Ronald”) filed a

petition to remove Sean Spicer as conservator of the person of Ryan

Morris.1 (CT 1:75) On April 6, 2016, the conservator, Sean Spicer, filed an

objection to the petition to remove him as conservator. (CT 1:83) On June

29, 2016, appellant Ryan Morris filed an objection to the petition to remove

Sean Spicer as conservator of the person of Ryan Morris. (CT 1:120)

The first phase of the bench trial on the petition to remove Sean

Spicer as conservator of the person of Ryan Morris was heard on February

28, 2018 (CT 3:619), March 1, 2018 (CT 3:620), March 5, 2018 (CT

3:623), March 6, 2018 (CT 3:624), March 7, 2018 (CT 3:628), March 12,

2018 (CT 3:630), March 13, 2018 (CT 3:631), March 15, 2018 (CT 3:632),

and March 19, 2018 (CT 3:633).

On March 29, 2018, respondent Ronald Moore filed his closing

1 In addition to the petition to remove conservator, a petition for appointment

of a successor conservator was filed by Ronald Moore (CT 1:94), and a

separate petition for appointment of a successor conservator was filed by

Monica Mukai and Olivia Mukai Lechner. (CT 1:107) Neither of these

petitions have been ruled on by the trial court and therefore are not the subject

of this appeal.

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argument brief. (CT 3:635) On April 9, 2018, appellant Ryan Morris filed

his closing argument brief. (CT 3:662) On April 9, 2018, the conservator,

Sean Spicer, filed his closing argument brief. (CT 3:685) On April 16,

2018, respondent Ronald Moore filed his reply to opposition to closing

argument brief. (CT 3:698)

On May 24, 2018, after the introduction of further evidence had been

closed and after all parties had submitted their respective closing briefs, the

trial court, on its own motion, made an order to reopen evidence and for an

evaluation pursuant to Evidence Code section 730. (CT 3:736) On July 3,

2018, the trial court made an order appointing Gary Freedman-Harvey as

the evaluator pursuant to Evidence Code section 730. (CT 4:857) On

December 21, 2018, the trial court made an order confirming that Dr.

Freedman-Harvey’s report had been received, and then reopened trial for

additional evidence. (CT 4:958)

The bench trial resumed and continued to be heard by the trial court

on May 14, 2019 (CT: 4:1031), May 15, 2019 (CT 4:1035), May 16, 2019

(CT 4:1040), and May 17, 2019 (CT 4:1048).

On May 17, 2019, the Court issued its Court’s Ruling On Petition to

Remove Sean Spicer As Conservator Over Ryan Morris. (CT 4:1042)

Ryan Morris timely filed his Notice of Appeal on May 20, 2019.

(CT 4:1052)

V. STATEMENT OF PERTINENT FACTS

At age 3, appellant, Ryan Morris, was placed in foster care with

foster parents, Michelle Morris and her husband, Larry Kerin. (RT 589:8-

10) In 2003, when Ryan was 9 years old, Michelle Morris and Larry Kerin

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adopted Ryan through the Orange County Superior Court. (RT 589:10-15)

Ryan Morris and Sean Spicer were married in 2014.2 (RT 145:16)

On July 29, 2015, Ryan Morris filed a petition seeking the appointment of

his husband, Sean Spicer, as limited conservator of his person.3 (CT 1:23)

On September 16, 2015, Ryan’s co-conservators Michelle Morris (his

adoptive mother) and Susan Bird-Santo (his adoptive sister) filed a

resignation as co-conservators. (CT 1:51) On September 16, 2015, the

court appointed Sean Spicer as temporary conservator of the person of

Ryan Morris. (CT 1:52) On October 28, 2015, the court appointed Sean

Spicer as successor limited conservator of the person of Ryan Morris. (CT

1:66) The limited conservatee, Ryan Morris, retained the right to consent

or withhold consent to marriage and the right to control his own social and

sexual contacts and relationships. (CT 1:69) The limited conservatee, Ryan

Morris, also retained the right to vote. (CT 1:68) The limited conservator

was granted the right to give or withhold medical consent for the

conservatee, the right to fix the conservatee’s residence, the right to access

confidential records of the conservatee, and the right to make decisions

concerning the education of the conservatee. (CT 1:69) Ronald Moore was

present at the hearing on the appointment of Sean Spicer as successor

2 Michelle Morris and Susan Bird-Santo were co-conservators of Ryan

Morris at the time of the marriage. (RT 795:24-25)

3 Prior to the filing of the petition to appoint Sean Spicer as conservator,

Michelle Morris and Gregory Morris served as co-conservators (RT 339:16-

17), and then later Michelle Morris and Susan Bird-Santo served as co-

conservators. (RT 616:13-18)

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limited conservator and did not object to the appointment. (CT 1:64)

On March 9, 2016, less than 6 months after he was in support of the

appointment of Sean Spicer as Limited Conservator, Ronald Moore filed a

subsequent petition to remove Mr. Spicer as limited conservator and

appoint Ronald Moore and Monica Mukai (Ryan’s biological aunt) as co-

conservators. (CT 1:75)

On April 6, 2016, Sean Spicer filed an objection to the petition to

remove him as conservator. (CT 1:83) On June 29, 2016, Ryan objected

and opposed the petition to remove his husband, Sean Spicer, as his limited

conservator. (CT 1:120)

The trial on the petition to remove conservator commenced on

February 28, 2018 (CT 3:619). During the first day of testimony, the

petitioner, Ronald Moore, attempted to present evidence of events that took

place prior to Sean Spicer being appointed as conservator. The trial court

made rulings that evidence at trial would be limited to events that occurred

after Sean Spicer was appointed as conservator. (RT 33:15 – 36:13)

At the completion of the first phase of the trial, the trial court took

the matter under submission after all closing argument briefing had been

completed. (CT 3:634) On May 24, 2018, on its own motion, the trial court

reopened evidence and ordered that an expert be appointed pursuant to

Evidence Code section 730. (CT 3:736)

The order appointing the court appointed expert under Evidence

Code section 730 specified that the expert was to do an evaluation and give

an opinion as to the conservatee’s capacity to enter into a marriage, what is

the most appropriate placement of the conservatee, who should continue to

have contact and visitation, and which of the limited conservatorship

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powers the conservatee can exercise based on his capacity. (CT 3:736-737)

The conservatee objected to the court’s expansion of issues which

were not properly plead or before the court to include questions that relate

to the limited conservatee’s capacity and powers, his marriage, placement

away from his spouse and contact and visitation with biological family

members that the limited conservatee does not want to visit. (CT 3:753-

760)

On May 14, 2019, the trial court resumed trial allowing testimony

from the expert appointed pursuant to Evidence Code section 730. (CT:

4:1031) The court allowed testimony regarding the limited conservatee’s

capacity and powers, his marriage, placement away from his spouse and

contact and visitation with biological family members that the limited

conservatee does not want to visit. (RT 754:24 – 900:12)

On May 17, 2019, after completing the bench trial, the Court granted

the petition and made an order removing Sean Spicer as conservator. (CT

4:1042) The May 17, 2019 order appointed the Riverside County Public

Guardian’s Office as temporary conservator and ordered that Ryan be

immediately removed from his home that he shared with his husband and

placed in a care facility. (CT 4:1042 – 1047)

On May 20, 2019, Ryan Morris timely filed his Notice of Appeal.

(CT 4:1052) On May 28, 2019, the trial court made an order confirming

that the order removing Sean Spicer as limited conservator was stayed

pursuant to Probate Code section 1310, subdivision (a), and that the

Riverside Public Guardian’s Office was appointed as temporary

conservator pursuant to Probate Code section 1310, subdivision (b). (CT

5:1130)

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VI. LEGAL ARGUMENT

A. Applicable Standards of Review

The standard of review applicable to interpretation of a statute or

question of law is independent or de novo review. (Azusa Land

Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52

Cal.App.4th 1165, 1192; Brown v. Grimes (2011) 192 Cal.App.4th 265,

274; Conservatorship of Presha (2018) 26 Cal.App.5th 487, 496.)

In this case, there are several pure questions of law, and regarding

those questions, the “independent review” standard applies. (Ghirardo v.

Antonioli (1994) 8 Cal.4th 791, 799; Topanga & Victory Partners, LLP v.

Toghia (2002) 103 Cal.App.4th 775, 780-781.) Questions of law include

interpretation of statutes. (In re Clarissa H. (2003) 105 Cal.App.4th 120,

125; Woo v. Superior Court (2000) 83 Cal.App.4th 967, 974.)

Similarly, application of law to undisputed facts presents a question

of law subject to independent appellate determination. (International

Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611; Crocker

National Bank v. City & County of San Francisco (1989) 49 Cal.3d 881.)

The Court on appeal exercises independent, de novo, review of

questions of law, giving no deference to the trial court's rulings or the

reasons for its rulings. (See, e.g., Stratton v. First National Life Ins. Co.

(2nd Dist. 1989) 210 Cal. App. 3d 1071; California Teachers Ass'n v. San

Diego Comm. College Dist. (1981) 28 Cal. 3d 692, 699; Barnett v. Delta

Lines, Inc. (1982) 137 Cal. App. 3d 674, 682.)

Determining if the trial court adhered to a constitutional principle is

solely a question of law. (California Assn. of Dispensing Opticians v.

Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419, 426.)

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In this case, the standard of review applicable to the trial court’s

discretionary actions is the abuse of discretion standard of review. (In re

Gilmaker’s Estate (1962) 57 Cal.2d 627, 633; Jones v. Stubbs (1955) 136

Cal.App.2d 490, 502.)

Under the abuse of discretion standard of review, the appellate court

“will disturb discretionary trial court rulings only upon a showing of ‘a

clear case of abuse’ and ‘a miscarriage of justice.’” (Blank v. Kirwan

(1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557,

566.)

Discretion is abused where the trial court fails to adhere to

applicable legal criteria. (Sargon Enterprises, Inc. v. University of Southern

California (2012) 55 Cal.4th 747, 773; Horsford v. Board of Trustees of

California State University (2005) 132 Cal.App.4th 359, 393-394.) “The

scope of discretion always resides in the particular law being applied, i.e.,

in the ‘legal principles governing the subject of [the] action….’ Action that

transgresses the confines of the applicable principles of law is outside the

scope of discretion and we call such action an ‘abuse’ of discretion.” (City

of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Accordingly,

even if the trial court’s action seems reasonable, given the trial court’s

mistaken view of the applicable legal principles, the action nonetheless

constitutes an abuse of discretion because “it is wrong on the law.” (City of

Sacramento v. Drew, supra, 207 Cal.App.3d at 1297-1298.) “To determine

if a trial court abused its discretion, [the appellate court] must thus consider

‘the legal principles and policies that should have guided the court’s

actions.’” (Sargon Enterprises, Inc. v. University of Southern California,

supra; accord People v. Carmony (2004) 33 Cal.4th 367, 377.)

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As will be shown, the trial court both committed numerous errors of

law and abused its discretion in ordering that the conservator be removed.

Consequently, the Judgment must be reversed.

B. The Trial Court Erred when it Imposed Duties on the

Conservator for Powers that were not Granted to the

Conservator but were Reserved to the Limited Conservatee.

On October 28, 2015, Sean Spicer was appointed as limited

conservator of the person of Ryan Morris, and he was granted limited

powers pursuant to Probate Code section 2351.5, subdivision (b). (CT

1:66-70)

Probate Code section 2351.5, subdivision (b) provides that: (b) A limited conservator does not have any of the

following powers or controls over the limited conservatee unless those powers or controls are specifically requested in the petition for appointment of a limited conservator and granted by the court in its order appointing the limited conservator:

(1) To fix the residence or specific dwelling of the

limited conservatee. (2) Access to the confidential records and papers of the

limited conservatee. (3) To consent or withhold consent to the marriage of,

or the entrance into a registered domestic partnership by, the limited conservatee.

(4) The right of the limited conservatee to contract. (5) The power of the limited conservatee to give or

withhold medical consent. (6) The limited conservatee's right to control his or her

own social and sexual contacts and relationships. (7) Decisions concerning the education of the limited

conservatee.”

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In the trial court’s October 28, 2015 order appointing Sean Spicer as

limited conservator, the court granted the limited conservator the right to

fix the conservatee’s residence (Prob. Code, § 2351.5, subd. (b)(1)), the

right to access confidential records and papers of the conservatee (Prob.

Code, § 2351.5, subd. (b)(2)), the right to give or withhold medical consent

(Prob. Code, § 2351.5, subd. (b)(5)), and the right to make decisions

concerning the education of the limited conservatee. (Prob. Code, § 2351.5,

subd. (b)(7).)

The court did not limit the limited conservatee’s right to consent or

withhold consent to marriage (Prob. Code, § 2351.5, subd. (b)(3)), nor did

it limit the limited conservatee’s right to control his own social and sexual

contacts and relationships. (Prob. Code § 2351.5, subd. (b)(6).)4

On March 9, 2016, Ronald Moore filed his petition to remove Sean

Spicer as conservator (CT 1:75), and on May 17, 2019, after a bench trial,

the trial court issued its Court’s Ruling on Petition to Remove Sean Spicer

as Conservator Over Ryan Morris. (CT 4:1042)

In the May 17, 2019 Court’s Ruling, the trial court made findings

that the conservator breached duties related to the conservatee’s marriage

and the conservatee’s choices related to his social and sexual contacts. The

court’s ruling made a finding that “[b]ased upon all of the evidence,

including the wedding video, it appears that Ryan does not have the mental

capacity to understand what a marriage is and therefore does not have the

4 The trial court’s order also limited the limited conservatee’s right to contract

(Prob. Code, § 2351.5, subd. (b)(4)) but did not grant that power to the

limited conservator.

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capacity to understand consent to be and remain married.” (CT 4:1046) The

issue of the conservatee’s capacity to marry was not before the court. The

power to consent or withhold consent to marry was reserved to the limited

conservatee in the order appointing the conservator.

In the Court’s Ruling, the trial court focused on evaluating whether

there was a conflict of interest between Sean’s role as conservator and his

role as spouse. The court concluded that it was in the best interest to

remove Sean as conservator because “[t]he lines between spouse and

conservator have been blurred to such an extent that it is no longer in

Ryan’s best interest to have Sean in the role of conservator.” (CT 4:1046)

The court’s analysis, however, fails to recognize that the Probate Code

imposes a preference for both the nominee of the conservatee and the

spouse of the conservatee. (Prob. Code, §§ 1810-1811.)

A limited conservatee is not presumed to be incompetent and retains

all rights, civil and legal, except those granted to the limited conservator.

(Prob. Code, § 1801, subd. (d).) The limited conservator was appointed in

this matter by court order on October 28, 2015. (CT 1:66) The order

reserved the conservatee’s right to consent or withhold consent to marriage,

and the right to control his own social and sexual contacts and

relationships.

The trial court in this matter went beyond the scope of the petition

before the court and impermissibly made findings related to the

conservatee’s marriage and his capacity to enter into marriage and remain

married. The issue of the conservatee’s capacity to enter into marriage was

not before the court, and the trial court did not consider that the limited

conservatee is not presumed to be incompetent. Since the limited

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conservator had no authority with regard to consenting to marriage, it

follows that an alleged failure with regard to this issue cannot be cause for

removal pursuant to Probate Code section 2650. Ryan testified at trial that

he loves Sean and wants to be married to him.5 (RT 425:26-27; 427:19-20;

639:14-20; 642:6-10; 646:12-13) Since Sean has no duty, and Ryan has

made it clear that he wants to be married, this cannot be a cause for removal

of the Conservator.

C. The Trial Court Erred when it Allowed Evidence and Made

Findings as to the Limited Conservatee’s Capacity to Marry,

without the Issue of the Limited Conservatee’s Capacity being

properly before the Court?

The petition before the court that is the subject of this appeal was a

petition to remove Sean Spicer as limited conservator of Ryan Morris. (CT

1:75) Removal of a conservator is governed by the provisions of Probate

Code sections 2650-2655. Probate Code section 2650 lists the various

causes for removal of a conservator, including the following provisions that

apply to a conservator of the person. Probate Code section 2650 provides

in pertinent part6 as follows:

5 There was also testimony from Ryan Morris that was contradictory, but the

trial court acknowledged that some of the questions were confusing to Ryan

and that “you may get a different response depending on how you ask a

question.” (RT 398:26-27)

6 Probate Code section 2650, subdivision (a), (b) and (h) relate only to causes

for removal of a conservator of the estate and are not applicable to this matter.

21

A guardian or conservator may be removed for any of

the following causes:

….

(c) Continued failure to perform duties or incapacity to

perform duties suitably.

(d) Conviction of a felony, whether before or after

appointment as guardian or conservator.

(e) Gross immorality.

(f) Having such an interest adverse to the faithful

performance of duties that there is an unreasonable risk that

the guardian or conservator will fail faithfully to perform

duties.

(g) In the case of a guardian of the person or conservator of

the person, acting in violation of any provision of Section

2356.

….

(j) In any other case in which the court in its discretion

determines that removal is in the best interests of the ward or

conservatee; but, in considering the best interests of the ward,

if the guardian was nominated under Section 1500 or 1501,

the court shall take that fact into consideration.”

A conservator can only be removed for cause as outlined in Probate

Code section 2650. (See In re Sherman’s Guardianship (1940) 42

Cal.App.2d 251; In re Guardianship of Brock (1957) 154 Cal.App.2d 431.)

The appointment of a conservator does not deprive the conservatee

of the capacity to marry or enter into a registered domestic partnership.

(Prob. Code, § 1900.) A determination of a person’s mental capacity is

Probate Code section 2650, subdivision (i) relates only to conservators

appointed in other jurisdictions which is also not applicable here.

22

governed by “the Due Process in Competence Determinations Act found in

Probate Code sections 810 to 813, 1801, 1881, 3201, and 3204 (the Act).”

(In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 640.) Marriage

of Greenway further explains that “the Legislature created the Act to clarify

the legal capacity of a person who has a mental or physical disorder. The

Act expressly states it broadly covers the capacity of such persons to

perform all types of actions, ‘including, but not limited to’ contracting,

conveying, executing wills and trusts, marrying, and making medical

decisions. (Prob. Code, § 810, subd. (b).) ‘The mere diagnosis of a mental

or physical disorder shall not be sufficient in and of itself to support a

determination that a person is of unsound mind or lacks the capacity to do a

certain act.’ (Prob. Code, § 811.) Moreover, the Act declares there ‘exist[s]

a rebuttable presumption affecting the burden of proof that all persons have

the capacity to make decisions and to be responsible for their acts or

decisions.’ (Prob. Code, § 810, subd. (a), italics added.)” (Id. at 640)

The court in Marriage of Greenway further discussed the low level

of capacity necessary to enter into marriage, as follows: There is a large body of case authority reflecting an extremely low level of mental capacity needed before making the decision to marry or execute a will. Marriage arises out of a civil contract, but courts recognize this is a special kind of contract that does not require the same level of mental capacity of the parties as other kinds of contracts. Family Code section 300, subdivision (a) simply states marriage requires “the consent of the parties capable of making that contract.” (See Rathburn v. Rathburn (1956) 138 Cal.App.2d 568, 573–574, 292 P.2d 274.) Generally, “All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” (Civ. Code, § 1556.) However, as described in Probate Code section 811, an “unsound mind” requires more than the diagnosis of a physical or mental disorder. Moreover, a person under a conservatorship, who is generally without contractual power, may be deemed to have marital capacity. (Prob. Code, § 1900

23

[appointment of conservator does not “affect the capacity of the conservatee to marry”].) Likely in recognition of the fundamental right to marry (Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1304, 120 Cal.Rptr.2d 670), the Legislature enacted a statute permitting a court to determine a conservatee's capacity to marry based on petition of the conservator, the conservatee or “any relative or friend of the conservatee, or any interested person.” (Prob. Code, § 1901, subd. (b).) “Whether the conservatee has capacity to marry is determined by the law that would be applicable had no conservatorship been established.” [footnote omitted] (Cal. Law Revision Com. com. 52A West's Ann. Prob. Code (2013 ed.) foll. § 1900, p. 280.) Thus, the court may rely on subjective information provided by “any interested person” on the conservatee's capacity to marry and must ignore a prior adjudication deeming it necessary to appoint a conservator because the conservatee lacked the legal capacity to enter into all transactions that bind or obligate the conservatorship estate. (Prob. Code, § 1872.) And, as mentioned earlier, there is also a presumption in support of finding the required mental capacity to marry. (Prob. Code, § 810.)

(In re Marriage of Greenway, supra, 217 Cal.App.4th at 641.)

Probate Code section 1801, subsection (d) also makes it clear that

“[t]he conservatee of the limited conservator shall not be presumed to be

incompetent and shall retain all legal and civil rights except those which by

court order have been designated as legal disabilities and have been

specifically granted to the limited conservator.” When the limited

conservatorship was granted in this case, the court did not limit the limited

conservatee’s right to consent or withhold consent to marriage (Prob. Code,

§ 2351.5, subd. (b)(3)), nor did it limit the limited conservatee’s right to

control his own social and sexual contacts and relationships. (Prob. Code, §

2351.5, subd. (b)(6).) (CT 1:66-70)

A petition to modify any of the powers specifically reserved to the

limited conservatee may be filed by the limited conservator, the limited

conservatee, or any relative or friend of the limited conservatee. The

petition must state facts alleged to established that the limited

24

conservatorship should be modified and notice of hearing on the petition

must be given. (Prob. Code, § 2351.5, subd. (c).) The limited conservatee

may appear and oppose the petition, and the limited conservatee is entitled

to a trial by jury if demanded. (Prob. Code, § 2351.5, subd. (d).)

There was no petition filed in this case seeking to modify the powers

reserved to the limited conservatee. Therefore, the court was not

empowered to make findings regarding the limited conservatee’s capacity

to marry or his right to consent to marriage.

Despite the fact that the issue of the limited conservatee’s capacity

was not before the court, after the first phase of the trial, the trial court, on

its own motion, reopened evidence and ordered that an Evidence Code

section 730 evaluation be completed. Evidence Code section 730 provides

that “[w]hen it appears to the court, at any time before or during the trial of

an action, that expert evidence is or may be required by the court or by any

party to the action, the court on its own motion or on motion of any party

may appoint one or more experts to investigate, to render a report as may

be ordered by the court, and to testify as an expert at the trial of the action

relative to the fact or matter as to which the expert evidence is or may be

required.”

The court’s order appointing an evaluator under Evidence Code

section 730 required that the expert do an evaluation and give an opinion as

to the conservatee’s capacity to enter into a marriage, what is the most

appropriate placement of the conservatee, who should continue to have

contact and visitation, and which of the limited conservatorship powers the

conservatee can exercise based on his capacity. (CT 3:736-737) None of

these issues were before the court

25

The appellant objected to the court’s expansion of issues which were

not properly plead or before the court to include questions that relate to the

limited conservatee’s capacity and powers, his marriage, placement away

from his spouse and contact and visitation with biological family members

that the limited conservatee does not want to visit. (CT 3:753-760) Over

the objection of the appellant, the court allowed testimony regarding the

limited conservatee’s capacity and powers, his marriage, placement away

from his spouse and contact and visitation with biological family members

that the limited conservatee does not want to visit. (RT 754:24 – 900:12)

It was improper for the trial court to expand the scope of trial and

allow evidence unrelated to the issue before the court which was whether

the conservator should be removed. The trial court improperly relied on

this evidence and made findings related to the limited conservatee’s

capacity, and then relied on these findings in its order removing the

conservator. The court stated in its order that “Ryan does not have the

mental capacity to understand what a marriage is and therefore does not

have the capacity to understand (sic) consent to be and remain married.”

(CT 4:1046) The court relied on this finding, despite the issue of capacity

not being before the court, to determine that there was a conflict of interest

involved with Sean being Ryan’s limited conservator. Findings made

regarding Ryan’s capacity, made without the issue being properly before

the court, cannot be the basis for removal of the conservator.

Accordingly, the judgment of the trial court must be reversed.

26

D. The Trial Court Erred when it Failed to Apply “Clear and

Convincing Evidence” as the Standard of Proof for Removal of a

Conservator.

The Probate Code does not specify a standard of proof for a petition

to remove a conservator. However, Probate Code section 1801, subdivision

(e) and the Court in Conservatorship of Sanderson (1980) 106 Cal.App.3d

611 provide that the standard of proof for appointment of a conservator is

clear and convincing evidence. The court in Sanderson reasoned that

“[b]alancing the benefit and purpose of the probate conservatorship

proceedings against the adverse consequences to the individual clearly

suggests the proper standard is clear and convincing proof. The deprivation

of liberty and stigma which attaches under a probate conservatorship is not

as great as under an LPS conservatorship. However, to allow many of the

rights and privileges of everyday life to be stripped from an individual “

‘under the same standard of proof applicable to run-of-the-mill automobile

negligence actions' ” cannot be tolerated.” (Id. at 620 (citations omitted))

While there is no case that specifies the standard of proof for a

petition for removal of a Conservator, the logic of the Sanderson court also

applies. A petition for removal also affects the same liberty interests and

involves the same balancing of the benefits and purpose of the

conservatorship. As in Sanderson, the standard of proof should not be the

same as a negligence action, but rather it should require proof by clear and

convincing evidence.

Furthermore, Probate Code section 1801, subdivisions (d) and (e),

when read together, provide that the determination of what powers are

granted to the limited conservator and reserved for the limited conservatee

27

require the standard of proof to be clear and convincing evidence.

Therefore, the standard of proof for modifying powers pursuant to Probate

Code section 2351.5, subdivision (c) should also be required to be clear and

convincing evidence.

Similarly the Fourteenth Amendment to the United States

Constitution requires the “clear and convincing evidence” standard in cases

implicating fundamental liberty interests. (Conservatorship of Wendland

(2001) 26 Cal.4th 519, 546; Santosky v. Kramer (1982) 455 U.S. 745, 753,

769–770 [102 S.Ct. 1388, 71 L.Ed.2d 599]; Addington v. Texas, (1979) 441

U.S. 418, 425, 432–433 [99 S.Ct. 1804, 60 L.Ed.2d 323]; Woodby v.

Immigration Service (1966) 385 U.S. 276, 285 [87 S.Ct. 483, 17 L.Ed.2d

362].)

United States Supreme Court and California cases have established

the right to marry as fundamental and one of the basic inalienable civil

rights guaranteed to an individual by the due process and privacy clauses of

the California Constitution. The California Supreme Court has ruled that

marriage is a fundamental right and that it is a fundamental right between

persons of the same sex who are in love and wish to marry each other. (In

re Marriage Cases (2008) 43 Cal.4th 757, 809–10; see also Strauss v.

Horton (2009) 46 Cal.4th 364, 411–412.) Similarly, the United States

Supreme Court has confirmed that “[t]he right to marry is a fundamental

right inherent in the liberty of the person . . . under the Due Process and

Equal Protection Clauses of the Fourteenth Amendment. . .” (Obergefell v.

Hodges (2015) 576 U.S. 644 [135 S.Ct. 2584, 2591].)

It follows, therefore, that depriving a limited conservatee (or any

conservatee) of the right to marry would require the standard of proof to be

28

clear and convincing evidence. It also follows that removing a conservator

based on findings related to the right to marry should also require clear and

convincing evidence. The court’s order in this case made findings that the

limited conservatee lacked capacity to marry and removed the conservator,

without requiring or making findings that there was clear and convincing

evidence to support the finding.

The trial court’s order in this case impermissibly interfered with the

limited conservatee’s right to be married because the order required that he

be removed from the home of his spouse. (CT 4:1046-1047) The court’s

order also limited visitation between Ryan and his spouse to visits in a

therapeutic setting only. (CT 4:1047) The trial court’s order has the effect

of interfering with the limited conservatee’s fundamental right to be

married because the order forces Ryan and his spouse to live separately. As

previously discussed, the trial court’s order forcing Ryan to live separately

from his spouse, and limiting his contact with his spouse, violates both the

United States and California Constitutions by interfering with Ryan’s

fundamental right to be married inherent in the limited conservatee’s liberty

interests under the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. There was no finding of clear and convincing

evidence sufficient to overcome Ryan’s fundamental right to live with his

spouse.

The court based the order removing the conservator on findings

made regarding the limited conservatee’s capacity to marry, without

making a finding by clear and convincing evidence. Based on reasons

stated above, the order removing the conservator should have required

findings based on clear and convincing evidence.

29

Accordingly, the judgment of the trial court must be reversed.

VII. CONCLUSION

This Court should reverse the trial court’s order removing the

limited conservator. The trial court improperly imposed duties on the

limited conservator that were beyond the scope of the powers granted to

him in the order appointing him as limited conservator. The trial court also

based its order on improperly made findings regarding the limited

conservatee’s capacity, without the issue of the limited conservatee’s

capacity being properly before the court, Furthermore, the trial court failed

to make findings by clear and convincing evidence as required when

addressing issues of the limited conservatee’s fundamental rights.

For all of these reasons, the judgment of the trial court should be

reversed.

DATED: June 9, 2020 BROWN WHITE & OSBORN LLP

By

s/Mark J. Andrew Flory

Mark J. Andrew Flory Attorneys for Appellant/Conservatee,

RYAN MORRIS

30

VIII. CERTIFICATE OF COMPLIANCE RE LENGTH

OF BRIEF

Pursuant to California Rules of Court, Rule 8.204, the undersigned

certifies the text in this brief consists of 7,263 words as counted by the

Microsoft Word program used to generate the brief.

DATED: June 9, 2020 BROWN WHITE & OSBORN LLP

By

s/Mark J. Andrew Flory

Mark J. Andrew Flory Attorneys for Appellant/Conservatee,

RYAN MORRIS

31

CERTIFICATE OF SERVICE

I am employed in the County of San Bernardino, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 300 E. State Street, Suite 300, Redlands, CA 92373.

On June 9, 2020, I served the following document(s) described as:

APPELLANT’S OPENING BRIEF in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows:

Honorable Sunshine S. Sykes

Riverside County Superior Court 4050 Main Street Riverside, CA 92501

BY MAIL: I deposited such envelope in the mail at 300 E. State Street, Suite 300, Redlands, CA 92373. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit.

BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier.

BY ELECTRONIC MAIL: On the above-mentioned date, from Los Angeles, California, I caused each such document to be transmitted electronically to the party(ies) at the e-mail address(es) indicated below. To the best of my knowledge, the transmission was reported as complete, and no error was reported that the electronic transmission was not completed.

STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on June 9, 2020, at Redlands, California. s/Kathleen Venegas

Kathleen Venegas

STATE OF CALIFORNIACalifornia Court of Appeal, Fourth Appellate District Division 2

PROOF OF SERVICE

STATE OF CALIFORNIACalifornia Court of Appeal, Fourth

Appellate District Division 2Case Name: Conservatorship of Ryan Morris; Ronald Moore

v. Ryan MorrisCase Number: E072813

Lower Court Case Number:

1.At the time of service I was at least 18 years of age and not a party to this legal action.

2.My email address used to e-serve: mflory@brownwhitelaw.com

3. I served by email a copy of the following document(s) indicated below:

Title(s) of papers e-served:Filing Type Document Title

BRIEF - APPELLANTS OPENING BRIEF

2020.06.09 Morris - Appellant's Opening Brief

Service Recipients:

Person Served Email Address Type Date / Time

Monica MukaiCourt Added

monica@monicamukai.com e-Serve

6/9/2020 7:15:36 PM

Olivia LechnerCourt Added

oml3437@roadrunner.com e-Serve

6/9/2020 7:15:36 PM

Mark FloryBrown White & Osborn LLP241851

mflory@brownwhitelaw.com e-Serve

6/9/2020 7:15:36 PM

Charles KrolikowskiNewmeyer & Dillion LLP185177

charles.krolikowski@ndlf.com e-Serve

6/9/2020 7:15:36 PM

Stacy Keffer sckeffer@rivco.org e-Serve

6/9/2020 7:15:36 PM

Steven K. Beckett sbeckett@inlandrc.org e-Serve

6/9/2020 7:15:36 PM

Sean Spicer philippians4_4@hotmail.com e- 6/9/2020

Court of Appeal, Fourth Appellate District, Division TwoKevin J. Lane, Clerk/Executive Officer

Electronically FILED on 6/9/2020 by R. Hance, Deputy Clerk

Serve 7:15:36 PM

This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, and belief.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

6/9/2020Date

/s/Mark FlorySignature

Flory, Mark (241851) Last Name, First Name (PNum)

Brown White & Osborn LLPLaw Firm