Molesky v. Carrillo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LISA MOLESKY, as Guardian ad Litem Case No. 1:22-cv-01567-ADA-CDB for J.M., a minor 12 ORDER GRANTING PLAINTIFF’S Plaintiff, PETITION TO APPOINT LISA 13 MOLESKY AS GUARDIAN AD LITEM v. FOR J.M., A MINOR 14 STALLION SPRINGS POLICE (Doc. 6) 15 DEPARTMENT OFFICER OSCAR CARILLO (No. 117), STALLION 16 SPRINGS POLICE DEPARTMENT OFFICER JAMES BARNARD (No. 111), 17 STALLION SPRINGS POLICE DEPARTMENT SERGEANT MIKE 18 BONSNESS (No. 108), and DOES 1 TO 15, 19 Defendants. 20 21 22 Before the Court is Lisa Molesky’s Petition for Appointment as Guardian Ad Litem for 23 J.M., a minor. This action involves the arrest and subsequent detention of J.M. by officers with 24 the Stallion Springs Police Department. (Doc. 1 at 1.) For the reasons set forth below, the petition 25 is GRANTED. 26 I. Appointment of a Guardian Ad Litem 27 Pursuant to the Federal Rules of Civil Procedure, “[a] minor . . . who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 1 17(c)(2). In addition, a court “must appoint a guardian ad litem - or issue another appropriate 2 order - to protect a minor or incompetent person who is unrepresented in an action.” Id. The 3 capacity of an individual to sue is determined “by the law of the individual’s domicile.” Fed. R. 4 Civ. P. 17(b)(1). 5 Under California law, an individual under the age of eighteen is a minor, and a minor may 6 bring suit if a guardian conducts the proceedings. Cal. Fam. Code §§ 6502, 6601. The Court may 7 appoint a guardian ad litem to represent the minor’s interests. Cal. Code Civ. P. § 372(a). To 8 evaluate whether to appoint a particular guardian ad litem, the Court must consider whether the 9 minor and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). For example, 10 “[w]hen there is a potential conflict between a perceived parental responsibility and an obligation 11 to assist the court in achieving a just and speedy determination of the action, a court has the right 12 to select a guardian ad litem who is not a parent if that guardian would best protect the child’s 13 interests.” Williams v. Super. Ct., 147 Cal. App. 4th 36, 49 (2007) (internal quotation marks and citation omitted). “[I]f the parent has an actual or potential conflict of interest with his child, the 14 parent has no right to control or influence the child’s litigation.” Id. at 50. 15 II. Discussion and Analysis 16 J.M. is under the age of eighteen (Doc. 6 at 1) and is a minor under California law. See 17 Cal. Fam. Code § 6502. As a minor, his ability to bring suit is contingent upon appointment by the 18 court of a guardian ad litem. Upon review of the complaint, it does not appear there are adverse 19 interests because Lisa Molesky is not a plaintiff in the action, and the only claims in the complaint 20 are asserted on behalf of the minor children. (See generally Doc. 1.) Ms. Molesky also consents 21 to act as guardian ad litem for J.M. (Doc. 6 at 2.) 22 Because there is neither an actual nor potential conflict of interest between the minor 23 plaintiff and Ms. Molesky, appointment of Ms. Molesky as guardian ad litem for her child in this 24 action is appropriate. See AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042, 1053-54 (E.D. 25 Cal. 2015) (noting that a “guardian ad litem need not possess any special qualifications,” but must 26 “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate”) 27 (citations omitted); see also Holgerson v. L&L Trucking, 2022 WL 17406551, at *1 (E.D. Cal. 1 | Dec. 2, 2022) (observing that “[f]it parents are presumed to act in the best interests of their 2 | children.”). 3 | IM. Conclusion and Order 4 The decision whether to appoint a guardian ad litem is “normally left to the sound 5 | discretion of the trial court.” United States v. 30.64 Acres of Land, etc., 795 F.2d 796, 804 (9th 6 | Cir. 1986). Here, it does not appear Lisa Molesky has any conflicting interests with J.M., and as 7 | such she may be appointed to represent the interests of her child. Therefore, the Court grants 8 | plaintiff's application for appointment of Ms. Molesky as his guardian ad litem. Based upon the g | foregoing, the Court ORDERS: 10 1. The application for appointment of Lisa Molesky as guardian ad litem for J.M. 11 (Doc. 6) is GRANTED; and 12 2. Lisa Molesky is appointed to act as guardian ad litem for plaintiff J.M. and is 13 authorized to prosecute the claims on his behalf. 14 | IT IS SO ORDERED. 15 Dated: _ December 12, 2022 | br 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28