Palomares v. City of Arvin ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MANUEL PALOMARES, Case No. 1:21-cv-01745-JLT-CDB 12 Plaintiff, ORDER DENYING PETITION TO APPOINT GUARDIAN AD LITEM WITHOUT 13 v. PREJUDICE 14 CITY OF ARVIN, ET AL., (Doc. 27) 15 Defendants. 16 17 Pending before the Court is Plaintiff’s petition to appoint his niece, Violeta Negrete Garcia 18 (Garcia), as his guardian ad litem. (Doc. 27). Because the petition does not provide substantial 19 evidence of incompetence and does not conform to the requirements of Local Rule 202, the petition 20 will be denied without prejudice. 21 LEGAL STANDARD 22 Under Rule 17 of the Federal Rules of Civil Procedure, a representative of an incompetent 23 person may litigate on that person’s behalf. Fed R. Civ. P. 17(c)(2). “The court is under a ‘legal 24 obligation’ to consider whether an incompetent person is adequately protected.” Jurgens v. 25 Dubendorf, No. 2:14-cv-2780-KJM-DAD, 2015 WL 6163464, *3 (E.D. Cal. Oct. 19, 2015) 26 (citing United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986)); Davis v. Walker, 27 745 F.3d 1303, 1310 n.6 (9th Cir. 2014). However, the obligation of the court to appoint a guardian ad litem pursuant to Rule 17(c) does not arise until after it is determined that the person 1 to be represented is, in fact, incompetent. AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 2 1050 (E.D. Cal. 2015). 3 The standard for determining competency is supplied by the law of the plaintiff’s 4 domicile. See Fed. R. Civ. P. 17(b)(1). Under California law, a party is incompetent “if he or she 5 lacks the capacity to understand the nature or consequences of the proceeding, or is unable to 6 assist counsel in the preparation of the case.” Golden Gate Way, LLC v. Stewart, 2012 WL 7 4482053, *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 8 (2001)); see also Cal. Civ. Proc. Code § 372 (“When . . . a person who lacks legal capacity to 9 make decisions . . . is a party, that person shall appear either by a guardian or conservator of the 10 estate or by a guardian ad litem[.]”) Typically,“ a guardian will not be appointed for an adult 11 unless the person gives consent or upon notice and a hearing.” Jurgens, 2015 WL 6163464, *3. 12 Accord Golden Gate Way, 2012 WL 4482053, *3 (relying on medical records and the Court’s 13 observations of the party at a hearing to conclude he did not have the capacity to participate in the 14 litigation in any meaningful fashion). 15 Additionally, the Local Rules of the Eastern District of California provide: 16 (a) Appointment of Representative or Guardian. Upon commencement of an action or 17 upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing the minor or incompetent person 18 shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state law or (2) a motion for the appointment 19 of a guardian ad litem by the Court, or (3) a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of the minor or 20 incompetent person. See Fed. R. Civ. P. 17(c); 21 . . . . 22 (c) Disclosure of Attorney’s Interest. When the minor or incompetent is represented by an attorney, it shall be disclosed to the Court by whom and the terms under which 23 the attorney was employed; whether the attorney became involved in the application at the instance of the party against whom the causes of action are 24 asserted, directly or indirectly; whether the attorney stands in any relationship to 25 that party; and whether the attorney has received or expects to receive any compensation, from whom, and the amount. (E.D. Cal. Local Rule 202). 26 27 DISCUSSION The petition states that Plaintiff has been diagnosed with early Alzheimer’s dementia. (Doc. 1 27, p. 2). The petition also states that a conservatorship for Plaintiff’s estate has been established, 2 and that letters of conservatorship were issued on February 3, 2023. (Id.) Additionally, the petition 3 has an attached consent statement signed by the proposed guardian ad litem (Garcia). While 4 Garcia’s declaration states that she consents to act as a guardian ad litem, it does not address 5 whether she is competent to act as a guardian ad litem, nor does it does address any potential 6 conflicts of interest she may have with Plaintiff. Moreover, the declaration does not address 7 whether she understands that she must act on her uncle’s best interests if she appointed as guardian 8 ad litem. See Johnson v. Johnson, No. 1:19-cv-00105-LJO-SAB, 2019 WL 13248650, *2 (E.D. 9 Cal. Jan. 28, 2019). 10 The petition does not provide substantial evidence of incompetency. See Johnson, 2019 11 WL 13248650, *2; Gibson v. Hagerty Insurance Agency, No. 1:16-cv-00677-DAD-BAM, 2017 12 WL 1022792, *4 (E.D. Cal. Mar. 16, 2017) (finding that a two-page excerpt based on a single 13 consultation with a physician insufficient to make an incompetence determination). The Ninth 14 Circuit has indicated that the Court may consider declarations from the allegedly incompetent 15 litigant, sworn declarations or letters from treating medical providers, and medical records when 16 making an incompetency determination. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). 17 “Under California law, evidence of incompetence may be drawn from various sources, but the 18 evidence relied upon must ‘speak . . . to the court’s concern . . . whether the person in question is 19 able to meaningfully take part in the proceedings.’” AT&T Mobility, 143 F. Supp. 3d at 1050. 20 (quoting In re Christina B., 19 Cal. App. 4th 1441, 1450 (1993)). 21 Furthermore, the petition does not comply with Local Rule 202(c). Although Plaintiff has 22 appeared through counsel in this matter, the motion does not disclose the terms under which the 23 attorney was employed; whether the attorney became involved in the application at the insistence 24 of any of the Defendants, directly or indirectly; whether the attorney stands in any relationship to 25 Defendants; and whether the attorney has received or expects to receive any compensation, from 26 whom, and the amount. See E.D. Cal. Local Rule 202(c). 27 Plaintiff may refile a petition seeking appointment of guardian ad litem that complies with 1 | for instance, (1) counsel of record that Plaintiff is incapable of participating in the litigation in any 2 | meaningful fashion, and (2) the proposed guardian ad litem that she has not conflicts of interest 3 | with and will represent the best interests of Plaintiff if appointed. In the event Defendants have no 4 | objection to the proposed guardian ad litem, Plaintiff should so indicate in any new petition such 5 | that this Court may dispense with the 14-day time for filing an opposition. 6 CONCLUSION AND ORDER 7 For the foregoing reasons, it is HEREBY ORDERED that Plaintiff’s petition to appoint 8 | Violeta Negrete Garcia as guardian ad litem for Plaintiff is DENIED WITHOUT PREJUDICE to 9 | the filing of a new petition that addresses the deficiencies noted above. 10 | IT IS SO ORDERED. | Dated: _March 14, 2023 | by 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28