(SS) Ramirez v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 SUSANA RAMIREZ, on behalf of N.R., No. 1:21-cv-00109-EPG 11 Plaintiff, 12 v. ORDER DENYING MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM 13 COMMISSIONER OF SOCIAL WITHOUT PREJUDICE SECURITY, 14 (ECF No. 3) Defendant. 15 16 17 Plaintiff Susana Ramirez, on behalf of N.R., a minor, filed a complaint to review 18 Defendant Commissioner of Social Security’s decision on January 26, 2021. (ECF No. 1). On 19 account of N.R. being a minor, Plaintiff Ramirez filed a motion to appoint a guardian ad litem the 20 same day. (ECF No. 3). The motion and accompanied declaration state that the proposed guardian 21 ad litem is N.R.’s mother. (Id. at 3). For the following reasons, the Court denies the motion, 22 without prejudice to Plaintiff’s re-filing the motion in compliance with Local Rule 202(c). 23 I. LEGAL STANDARDS 24 Under Federal Rule of Civil Procedure 17(c)(2), “[a] minor or an incompetent person who 25 does not have a duly appointed representative may sue by a next friend or by a guardian ad 26 litem.” Fed. R. Civ. P. 17(c)(2). In construing Rule 17(c), the Ninth Circuit has stated, “Although 27 the [district] court has broad discretion and need not appoint a guardian ad litem if it determines 28 the person is or can be otherwise adequately protected, it is under a legal obligation to consider 1 whether the person is adequately protected.” United States v. 30.64 Acres of Land, More or Less, 2 Situated in Klickitat Cnty., State of Wash., 795 F.2d 796, 805 (9th Cir.1986). 3 The Court looks to “the law of the individual’s domicile” to determine that individual’s 4 capacity to sue or be sued. Fed. R. Civ. P. 17(b)(1). Here, that law is California. (See ECF No. 1) 5 (Plaintiff is domiciled in Fresno, California). In determining whether to appoint a particular 6 guardian ad litem, the court must consider whether the minor and the guardian have divergent 7 interests. Cal. Code Civ. P. § 372(b)(1). “When there is a potential conflict between a perceived 8 parental responsibility and an obligation to assist the court in achieving a just and speedy 9 determination of the action, a court has the right to select a guardian ad litem who is not 10 a parent if that guardian would best protect the child’s interests.” Williams v. Super. Ct., 147 11 Cal.App.4th 36, 38 (2007) (internal quotation marks and citation omitted). “[I]f the parent has an 12 actual or potential conflict of interest with his child, the parent has no right to control or influence 13 the child’s litigation.” Id. at 50. While, “[a] parent is generally appointed guardian ad litem,” 14 Anthem Life Ins. Co. v. Olguin, No. 1:06-CV-01165 AWI-NEW, 2007 WL 1390672, at *3 (E.D. 15 Cal. May 9, 2007), “a parent is not entitled to be the next friend of his or her child as a matter of 16 absolute right.” Id. at *2 (citing Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955)). 17 Courts in this district have found that parents do not have adverse interests from their 18 children in cases challenging only the decision of the Commissioner of Social Security. See, e.g., 19 Castillo v. Saul, No. 1:20-CV-0991-JLT, 2020 WL 4570399, at *1 (E.D. Cal. Aug. 7, 2020) 20 (“Plaintiff is the child of Daniela Padraza Reyes, and is a minor under California law. See Cal. 21 Fam. Code § 6502. As a minor, the child's ability to bring suit is contingent upon appointment by 22 the court of a guardian ad litem. Upon review of the Complaint, it does not appear there are 23 adverse interests, because the only claims are asserted on Plaintiff's behalf.”); L.H. v. Comissioner 24 of Soc. Sec., No. 1:12-CV-00022-JLT, 2012 WL 1739811, at *1 (E.D. Cal. May 15, 2012) 25 (“Upon review of the Complaint, it does not appear there are adverse interests. Ms. Owens does 26 not have competing claims with Plaintiff, because the only claim in this action is for review of the 27 decision denying Plaintiff’s claim for benefits. Therefore, Ms. Owens’ appointment as guardian 28 ad litem for her son is appropriate.”). 1 Local Rule 202(c) provides additional requirements: 2 (c) Disclosure of Attorney’s Interest. When the minor or incompetent is 3 represented by an attorney, it shall be disclosed to the Court by whom and the terms under which the attorney was employed; whether the attorney became 4 involved in the application at the instance of the party against whom the causes of action are asserted, directly or indirectly; whether the attorney 5 stands in any relationship to that party; and whether the attorney has received or expects to receive any compensation, from whom, and the amount. 6 7 E.D. Cal. L.R. 202. 8 II. APPLICATION 9 Plaintiff has indicated stating that N.R. is a minor, so a guardian ad litem is necessary to 10 continue this action. Plaintiff has properly filed a motion to appoint herself as guardian ad litem 11 for N.R. See Local Rule 202(a)(2). There appear to be no conflicts between Plaintiff and N.R. 12 upon a review of the complaint, as Plaintiff seeks only to review the decision of the 13 Commissioner of Social Security. See L.H., 2012 WL 1739811, at *1. In addition, Plaintiff is 14 represented by Jonathan O. Peña, a competent counsel who has appeared before the Court in 15 numerous other Social-Security cases. See also Peña & Bromberg, PLC, Fresno Social Security 16 Disability Lawyer, www.jonathanpena.com (last visited Jan. 28, 2021) (“Located in Fresno, Peña 17 & Bromberg, PLC provides comprehensive legal services to disabled individuals and their 18 families in Central Valley, California and throughout the United States. We are well versed in 19 disability benefits programs available through the Social Security Administration, including 20 Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).”).1 21 Nevertheless, the motion does not comply with Local Rule 202(c) as it does not disclose 22 the attorney’s interest. 23 /// 24 1 The docket lists the email address for counsel as info@jonathanpena.com. The Court takes judicial notice of the fact 25 that counsel’s website advertises himself as having experience in Social-Security cases. Fed. R. Evid. 201; Threshold Enter. Ltd. V. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020) (“In general, websites and their contents may be judicially noticed.”); 2Die4Kourt v. Hillair Cap. Mgmt., LLC, No. 16-cv-1304-JVS-DFM, 2016 WL 26 4487895, at *1 n.1 (C.D. Cal. Aug. 23, 2016) (taking judicial notice of thirty-four online news articles and social media posts “solely for their existence and content, and not for the truth of any statements in the documents.”). In 27 addition, Mr. Peña has 32 active Social-Security cases before the undersigned and a total of 276 such cases in this district. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (holding that “a court may take judicial notice of 28 its own records in other cases”). 1 | I. ORDER 2 Accordingly, it is HEREBY ORDERED THAT Plaintiff's motion for the appointment of 3 | guardian ad litem (ECF No. 3) is DENIED, WITHOUT PREJUDICE, to Plaintiff filing a revised 4 | motion that complies with Local Rule 202(c). 5 6 IT IS SO ORDERED. 7) Dated: _ January 28, 2021 [Je hey □□ 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28