Reyes v. County of Kern ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANNA REYES, et al. Case No. 1:21-cv-01340-CDB 12 Plaintiffs, ORDER DENYING WITHOUT PREJUDICE MOTIONS TO APPOINT GUARDIAN AD 13 v. LITEM FOR L.H.B. AND P.H.B. 14 COUNTY OF KERN, (Docs. 22, 23) 15 Defendant. 16 17 On September 7, 2021, Defendant County of Kern removed this action filed by Plaintiffs in 18 Kern County Superior Court. (Doc. 1). Currently before the Court are Plaintiff L.H.B. and P.H.B.’s 19 motions to appoint Christina Hungerford as their guardian ad litem, filed February 2, 2023. (Docs. 20 22, 23). Because the motions do not comply with Local Rule 202, the Court will deny the motions 21 without prejudice.1 22 LEGAL STANDARD 23 Pursuant to Rule 17 of the Federal Rules of Civil Procedure, a representative of a minor or 24 incompetent person may sue or defend on the minor or incompetent person’s behalf. Fed. R. Civ. 25 P. 17(c). In addition, a court “must appoint a guardian ad litem - or issue another appropriate 26 order - to protect a minor or incompetent person who is unrepresented in an action.” Id. The 27 1 The Court will hold in abeyance Plaintiffs’ pending, stipulated motion for leave to amend the complaint to add the proposed guardian ad litem as a named plaintiff (Doc. 25) until 1 capacity of an individual to sue is determined “by the law of the individual’s domicile.” Fed. R. 2 Civ. P. 17(b)(1). 3 Under California law, an individual under the age of 18 is a minor, and a minor may bring 4 suit if a guardian conducts the proceedings. Cal. Fam. Code §§ 6502, 6601. The Court may appoint 5 a guardian ad litem to represent the minor’s interests. Cal. Code Civ. P. § 372(a). To evaluate 6 whether to appoint a particular guardian ad litem, the Court must consider whether the minor and 7 the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). 8 The appointment of the guardian ad litem is more than a mere formality. United States v. 9 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., State of Wash., 795 F.2d 796, 805 10 (9th Cir. 1986). A Court shall take whatever measures it deems appropriate to protect the interests 11 of the induvial during the litigation. See id. (noting, “[a] guardian ad litem is authorized to act on 12 behalf of his ward and may make all appropriate decisions in the course of specific litigation.”). 13 The guardian need not possess any special qualifications, but he must “be truly dedicated to the 14 best interests of the person on whose behalf he seeks to litigate.” AT&T Mobility, LLC v. Yeager, 15 143 F. Supp.3d 1042, 1054 (E.D. Cal. 2015) (quoting Whitmore v. Arkansas, 495 U.S. 149, 163-64 16 (1990)). This means that the guardian cannot face an impermissible conflict of interest with the 17 ward, and courts consider the candidate’s “experience, objectivity and expertise” or previous 18 relationship with the ward. Id. (citations omitted). 19 Further, the Local Rules of the Eastern District of California provide: 20 (a) Appointment of Representative or Guardian. Upon commencement of an action or 21 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 22 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 23 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 24 incompetent person. See Fed. R. Civ. P. 17(c); 25 . . . . 26 (c) Disclosure of Attorney’s Interest. When the minor or incompetent is represented by 27 an attorney, it shall be disclosed to the Court by whom and the terms under which the attorney was employed; whether the attorney became involved in the 1 application at the instance of the party against whom the causes of action are asserted, directly or indirectly; whether the attorney stands in any relationship to 2 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). 3 4 The decision to appoint a guardian ad litem “must normally be left to the sound discretion 5 of the trial court.” 30.64 Acres of Land, 795 F.2d at 804. Fit parents are presumed to act in the 6 best interests of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000). However, “if the parent 7 has an actual or potential conflict of interest with [their] child, the parent has no right to control or 8 influence the child’s litigation.” Molesky for J.M. v. Carillo, No. 1:22-cv-1567-ADA-CDB, 2022 9 WL 17584396, *1 (E.D. Cal. Dec. 12, 2022) (quoting Williams v. Super. Ct. of San Diego, 147 Cal. 10 App. 4th 36, 50 (2007)). 11 DISCUSSION 12 The motions were filed on February 2, 2023, and state that Plaintiffs L.H.B. and P.H.B. are 13 five and four years old, respectively. (Docs. 22, 23). No previous motion for appointment of a 14 guardian ad litem has been filed in this matter.2 The proposed guardian ad litem, Christina 15 Hungerford, declares she is competent, responsible, able and willing to serve as the guardian ad 16 litem. (Docs. 22-1, 23-1). As L.H.B. and P.H.B.’s parent, Christina Hungerford is qualified to 17 understand and protect the minors’ rights and attests she can “appropriately serve and protect [their] 18 best interests in this action.” Id. Ms. Hungerford, however, does not disclose and does not represent 19 whether she has any interests adverse to the interests of her children whom she seeks to represent. 20 The motions separately do not comply with Local Rule 202(c). Although Plaintiffs L.H.B. 21 and P.H.B. have appeared through counsel in this matter, the motion does not disclose the terms 22 under which the attorney was employed; whether the attorney became involved in the application 23 at the insistence of any of the Defendants, directly or indirectly; whether the attorney stands in any 24 relationship to Defendants; and whether the attorney has received or expects to receive any 25 2 Local Rule 202 requires upon commencement of an action, the attorney representing the 26 minor must 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 of a guardian ad litem 27 by the Court or, (3) a showing satisfactory to the Court that no such appointment is necessary. Local Rule 202(a). Plaintiffs’ motions were filed more than a year after this case was removed to 1 | compensation, from whom, and the amount. See E.D. Cal. Local Rule 202(c). The Court will 2 | therefore deny the motion without prejudice to refiling a motion that complies with Local Rule 202 3 | and in support of which the proposed guardian ad litem represents that she has no interests adverse 4 | to the minors she seeks to represent. 5 CONCLUSION AND ORDER 6 For the foregoing reasons, it is HEREBY ORDERED that Plaintiffs’ motions to appoint 7 | Christina Hungerford as guardian ad litem for L.H.B. and P.H.B. are DENIED WITHOUT 8 | PREJUDICE. 9 | IT IS SO ORDERED. Dated: _ February 6, 2023 | Ww Vv R~ 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28