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 GRANTING PETITION TO APPOINT GUARDIAN AD LITEM 13 v. (Docs. 31, 34) 14 CITY OF ARVIN, ET AL., 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. 31). The Court ordered Plaintiff to submit supplemental 19 briefing so that his petition complies with Local Rule 202(c). On March 21, 2023, Plaintiff filed a 20 supplement. (Doc. 34). Defendants have not filed an opposition to the petition, and the time to do 21 so has passed. 22 LEGAL STANDARD 23 Under Rule 17 of the Federal Rules of Civil Procedure, a representative of an incompetent 24 person may litigate on that person’s behalf. Fed R. Civ. P. 17(c)(2). “The court is under a ‘legal 25 obligation’ to consider whether an incompetent person is adequately protected.” Jurgens v. 26 Dubendorf, No. 2:14-cv-2780-KJM-DAD, 2015 WL 6163464, *3 (E.D. Cal. Oct. 19, 2015) 27 (citing United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986)); Davis v. Walker, 745 F.3d 1303, 1310 n.6 (9th Cir. 2014). However, the obligation of the court to appoint a 1 guardian ad litem pursuant to Rule 17(c) does not arise until after it is determined that the person 2 to be represented is, in fact, incompetent. AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 3 1050 (E.D. Cal. 2015). 4 The standard for determining competency is supplied by the law of the plaintiff’s 5 domicile. See Fed. R. Civ. P. 17(b)(1). Under California law, a party is incompetent “if he or she 6 lacks the capacity to understand the nature or consequences of the proceeding, or is unable to 7 assist counsel in the preparation of the case.” Golden Gate Way, LLC v. Stewart, 2012 WL 8 4482053, *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 9 (2001)); see also Cal. Civ. Proc. Code § 372 (“When . . . a person who lacks legal capacity to 10 make decisions . . . is a party, that person shall appear either by a guardian or conservator of the 11 estate or by a guardian ad litem[.]”) Typically,“ a guardian will not be appointed for an adult 12 unless the person gives consent or upon notice and a hearing.” Jurgens, 2015 WL 6163464, *3. 13 Accord Golden Gate Way, 2012 WL 4482053, *3 (relying on medical records and the Court’s 14 observations of the party at a hearing to conclude he did not have the capacity to participate in the 15 litigation in any meaningful fashion). 16 Additionally, the Local Rules of the Eastern District of California provide: 17 (a) Appointment of Representative or Guardian. Upon commencement of an action or 18 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 19 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 20 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 21 incompetent person. See Fed. R. Civ. P. 17(c); 22 . . . . 23 (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 24 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 25 asserted, directly or indirectly; whether the attorney stands in any relationship to 26 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). 27 1 DISCUSSION 2 The petition states that Plaintiff has been diagnosed with early Alzheimer’s dementia. (Doc. 3 31-1, p. 2). The petition also states that a conservatorship for Plaintiff’s estate has been established. 4 (Id.) A letter of conservatorship issued by the Superior Court of California, County of Kern, is 5 attached to the petition. (Doc. 31-3). The letters of conservatorship set out court findings that 6 Plaintiff is unable to properly provide for his personal needs. (Doc. 31-2). In addition, the 7 California court reviewed a declaration provided by Plaintiff’s medical provider in determining 8 Plaintiff’s conservatorship. (Id.) The set court recognizes Garcia as the conservator for Plaintiff’s 9 person and estate. (Doc. 31-3). 10 The Ninth Circuit has indicated that the Court may consider declarations from the allegedly 11 incompetent litigant, sworn declarations or letters from treating medical providers, and medical 12 records when making an incompetency determination. Allen v. Calderon, 408 F.3d 1150, 1153 13 (9th Cir. 2005). “Under California law, evidence of incompetence may be drawn from various 14 sources, but the evidence relied upon must ‘speak . . . to the court’s concern . . . whether the person 15 in question is able to meaningfully take part in the proceedings.’” AT&T Mobility, 143 F. Supp. 3d 16 at 1050. (quoting In re Christina B., 19 Cal. App. 4th 1441, 1450 (1993)). 17 Here, having considered the unopposed petition for appointment of Garcia as Plaintiff’s 18 guardian ad litem, the supplemental briefing, supporting declarations, and Plaintiff’s letter of 19 conservatorship — the Court finds that the petition should be granted. The Court further finds that 20 no conflict would preclude Garcia from serving as guardian ad litem for Plaintiff. The Court finds 21 that the appointment is both necessary and appropriate. 22 CONCLUSION AND ORDER 23 For the foregoing reasons, it is HEREBY ORDERED: 24 1. Plaintiff Manual Palomares’s unopposed motion to appoint Violeta Negrete Garcia 25 as guardian ad litem for Plaintiff (Docs. 31, 34) is GRANTED; and 26 / / / 27 1 2. Violeta Negrete Garcia is appointed to act as guardian ad litem for Plaintiff 2 and is authorized to prosecute the claims on his behalf. 3 | IT IS SO ORDERED. “| Dated: _ April 6, 2023 | hr Rr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28