A.F. v. Jeffrey F. ( 2023 )

Filed 4/14/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.F., D079919
Appellant,
v. (Super. Ct. No. 21FDV01528N)
JEFFREY F.,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Sharon L. Kalemkiarian, Judge. Affirmed in part, reversed in part.
Beatrice L. Snider, John L. Romaker, and Alexandria M. Jones, for
Appellant.
No appearance for Respondent.
INTRODUCTION
When A.F. was 11 years old, she applied for a domestic violence
restraining order (DVRO) against her father, Jeffrey F. (Father), who holds
joint legal custody with her mother, Andrea F. (Mother). Mother was the
original guardian ad litem (GAL), and she retained attorney Edward Castro
to represent A.F. Father moved to disqualify Mother as the GAL and Castro
as A.F.’s counsel and was successful. A.F. appealed the July 16, 2021 order
disqualifying Castro.
While that appeal was pending, A.F. turned 12 years old, and the court
did not appoint a new GAL. Although A.F. brought the petition on her own
behalf, the family court in her parents’ dissolution matter, case
No. DN171362 (the dissolution matter), appointed a “minor’s counsel”1 to
represent her best interests there, in anticipation of changes to the custody
and visitation arrangement that could result from the outcome in the present
case, case No. 21FDV01528N (the DV matter).
A.F., on her own behalf, retained a new attorney, Aaron Smith, to
represent her in the DV matter. The court reviewed that contract and
rejected the fee agreement between A.F. and Smith for numerous reasons,
including that there was a potential conflict of interest from having her
maternal grandfather (Grandfather) serve as a third-party guarantor. The
court also interviewed A.F. and determined she was not competent to retain
counsel independently, and it found that Smith did not meet the
requirements detailed by the California Rules of Court, rule 5.2422 to serve
as a “minor’s counsel.” So, the court removed Smith as A.F.’s attorney,
appointed a “minor’s counsel” in the DV matter, and prohibited Smith from
replacing the attorney the court appointed as a “minor’s counsel.”
1 We use the term “minor’s counsel” throughout our opinion because that
is the language the superior court used in its order. “Minor’s counsel”
references an attorney appointed under chapter 10 of the Family Code who
“is charged with the representation of the child’s best interests.” (Fam. Code,
§ 3151, subd. (a); see also id. at § 3150, subd. (a) [explaining the court can
appoint private counsel to represent the interests of children in custody or
visitation proceedings].)
2 Further references to “Rule” or “Rules” are to the California Rules of
Court unless otherwise specified.
2
A.F. appeals, contending that the matter of selecting her attorney
should have been automatically stayed pending the outcome of the appeal of
the court’s order disqualifying Castro. She also contends it was error to
appoint a “minor’s counsel” in the DV matter; it was improper to disqualify
her attorney based on the rejection of the fee agreement and the lack of
Smith’s qualifications in compliance with Rule 5.242; and her due process
rights were violated because the court interviewed her without notice or an
opportunity to be heard.
We conclude that the court had subject matter jurisdiction to act in the
DV matter while the first appeal was pending because her original attorney
substituted out of the case. We reverse the order appointing a “minor’s
counsel,” which is improper in a DV matter where a minor seeks a
restraining order under the Domestic Violence Prevention Act (DVPA) (Fam.
Code,3 § 6200 et seq.). We affirm the court’s order voiding the agreement
between A.F. and Smith and removing Smith as her attorney on the basis
that A.F. lacked competency to select her attorney independently. However,
we reverse the order prohibiting Smith from serving as A.F.’s attorney in the
matter because it was an abuse of discretion to completely disqualify him on
the basis that the court rejected the fee agreement or that he failed to meet
the requirements of Rule 5.242. Finally, while we agree that the court failed
to provide proper notice to A.F. before interviewing her, we conclude this
conduct did not prejudice A.F.
BACKGROUND AND PROCEDURAL FACTS
On April 2, 2021, Mother, as GAL, filed a petition for a domestic
violence restraining order under the DVPA against Father on behalf of A.F.
3 Further statutory references are to the Family Code unless otherwise
specified.
3
Castro, Mother’s former divorce attorney, was hired to represent A.F. in the
DV matter. The original petition also included a request to modify custody
orders.
Father moved to disqualify Castro in both the dissolution and DV
matters. He also requested reunification therapy, individual therapy, and
appointment of a “minor’s counsel” for A.F. The court concluded those
requests were improper for the DV matter and could only be raised in the
dissolution matter, where Father and Mother were the parties. It vacated
the custody and visitation order sought in the DVRO petition.
On July 16, 2021, the court in the DV matter disqualified Castro from
representing either A.F. in the DV matter or Mother in the dissolution
matter. It also removed Mother as the GAL, noted the parents had not
reached an agreement on who would be an appropriate GAL, and invited
them to set an ex parte hearing to address the conflict.
On July 21, 2021, A.F. appealed the disqualification of Castro.
On July 28, 2021, the court called the dissolution matter and the DV
matter together. The court explained it was contemplating appointing a
“minor’s counsel” in the dissolution matter to advise the court, to present
evidence not heard from the minor, and to help determine whether a GAL
should be appointed. The court appointed attorney Stephanie Mendez to
serve as A.F.’s “minor’s counsel” in the dissolution matter.
On August 16, 2021, attorney Smith substituted in for Castro as the
attorney of record for A.F.
On August 31, 2021, A.F. filed an ex parte application in the DV matter
asking the court to enforce an automatic stay based on the appeal challenging
Castro’s disqualification.
4
At the trial readiness conference for the DV matter held on
September 22, 2021, Smith appeared for A.F., who was not present. In part
because the court viewed the DV matter as essentially a custody and
visitation issue, it believed it could appoint a “minor’s counsel.” So, the court
viewed its options as appointing A.F. a GAL or a “minor’s counsel.” The court
also told the parties that it was obligated to review and approve any contract
for a minor, and Smith could not represent A.F. as her personal attorney
without its approval. It told Smith he could not meet with A.F. until it
reviewed (and approved) the fee agreement.
The court told the parties that at the November 1 hearing, it would
consider the following issues: A.F.’s claim that there was an automatic stay
in place, whether it would appoint a “minor’s counsel,” and its authority to
review and approve the agreement between Smith and A.F. It said there
would be “[n]o testimony, legal briefing only . . . .”
At the November 1, 2021 hearing, A.F.’s attorney argued that Castro’s
disqualification should be stayed, permitting him to serve as co-counsel in the
DV matter. The court noted that Castro had substituted himself out of the
matter and was no longer the attorney of record for A.F.; Smith was not
simply associated in as additional counsel.4 Thus, an automatic stay did not
apply. It inquired of Smith whether he met the requirements of Rules 5.240,
5.241, and 5.242, and Smith admitted he did not. The court commented that
it would create “a very, very dangerous and tumultuous situation in the
family court if we started to allow minors to retain counsel who did not meet
the requirements of minor’s counsel appointed by the court.” It said it “would
not appoint counsel that didn’t meet those requirements . . . . [T]hose
4 Smith represented to the court that the court clerk would not permit
him to file anything while Castro was listed as the attorney of record.
5
requirements are there for a reason, and they’re there to ensure that minor’s
counsel understands what its job is going to be.” The court agreed to hear
Smith’s arguments on the matter, but it cautioned that there is “very specific
training that is required to represent minors in the family court.”
The court also explained it needed to be satisfied A.F. was competent to
select counsel and to approve the contract before Smith could move forward
as her attorney. Thus, it requested A.F.’s physical appearance so it could
interview her in person that afternoon. The court told Grandfather and
Mendez that they could tell A.F. that she did not need to be nervous, “[w]e’re
just going to chat.” The court permitted the attorneys to observe the
conversation remotely, but no one would be in the courtroom except the judge
and A.F.
A.F. appeared that afternoon. The court began by explaining why it
wanted to see A.F., telling her there would be a trial on the restraining order,
and A.F. would have an attorney for that. The court asked if A.F. understood
why the court wanted to meet with her, and A.F. asked the court to explain.
The court asked A.F. if she remembered what her mom was called when she
first filed the petition for the DVRO, and A.F. answered, “guardian ad litem.”
A.F. also remembered the name of her first attorney, Castro, but did not
remember why the court would not allow Castro to represent her. When
asked if A.F. understood what the conflict of interest was, A.F. answered that
Castro represented her mom in the divorce case and then represented A.F.,
but she could not explain why that might create a conflict of interest. A.F.
also could not remember what it meant that Castro appealed that order.
The court told A.F. it had to decide whether she understood what it
would mean to have a contract with Smith. The court asked A.F. how she
found Smith, and A.F. explained that Mother helped her. At first, A.F. said
6
Mother gave her a couple of different names and asked if there was one she
liked, and that she thought there was another person she interviewed besides
Smith, but ultimately she explained Smith was the only person she met.
The court asked A.F. about the agreement between A.F. and Smith.
A.F. explained she asked Mother for help understanding some of it. A.F. told
the court Smith was hired to represent her in the DV matter. A.F. could not
remember what a retainer was, the meaning of service of process, or what a
process server does. A.F. remembered that Grandfather signed the
agreement, too, but she could not remember why. She said Mother and
Grandfather were going to pay the bill, and she indicated she did not know
she could be responsible herself for the bill; nor did she have any money to
pay. The court asked A.F. if she would know what to do if she no longer
wanted Smith to represent her, and A.F. said she did not know. If they had a
disagreement over what Smith charged, A.F. also did not know what she
would do, and she did not know how much he was charging her.
A.F. told the court she would rather hire her own attorney than have
the court appoint one so she could choose who was best for her, but she could
not explain how she would make that choice.
The court issued its written order on November 8, 2021. It did not
approve the contract between A.F. and Smith. Instead, it asked Mendez to
represent A.F. in the DV matter “as part of her duties as minor’s counsel.”
Although the court found that A.F. had the right to hire her own attorney, it
found the contract between A.F. and Smith void and concluded he could not
represent A.F. in the DV matter. It determined that A.F. “did not have the
capacity to enter the contract with Attorney Smith—she did not understand
why she was hiring him or the terms of his engagement.” It explained that
7
while A.F. “understood what she had hired [Smith] to do, she was not aware
of the most basic information required of a client.”
The court separately concluded Smith could not represent A.F. in the
DV matter because he did not meet the requirements of Rule 5.240 et seq.,
outlining the standards that must be met by a “minor’s counsel” appointed by
the court, and he did not present alternative qualifications.
Finally, the court explained that “there could be potential problems” in
permitting A.F.’s maternal grandfather to act as a guarantor of the contract
with Smith. Specifically, the court noted that Rule 1.8.6 of the Rules of
Professional Conduct prohibits an attorney from entering an agreement in
which a third party pays unless the lawyer obtains the client’s informed
written consent. A.F. had not initialed that paragraph, and the court
concluded she was not competent to provide the required consent.
Finally, the order stated that Smith could not “represent [A.F.] in [the]
proceeding” and also prohibited Smith from substituting in for Mendez.
On November 18, 2021, A.F. appealed the order.
On January 12, 2022, we stayed all orders embraced in the court’s
July 16, 2021 order disqualifying counsel. Castro appeared on behalf of A.F.
in an ex parte hearing on January 14, 2022, at which the court removed
Mendez as “minor’s counsel” in the dissolution and DV matters.
DISCUSSION
I.
Subject Matter Jurisdiction
A.F. contends the court lacked subject matter jurisdiction to address
issues related to her legal representation because the issue of her first
attorney’s disqualification was pending appeal.
8
When the evidence is not in dispute, subject matter jurisdiction is a
legal issue, which we review de novo. (Dial 800 v. Fesbinder (2004) 118
Cal.App.4th 32, 42.) The court disqualified A.F.’s first retained attorney,
Castro, an order which A.F. appealed. At the time of the hearing at which
the court appointed a “minor’s counsel” in the DV matter, that appeal was
pending.
Code of Civil Procedure section 916, subdivision (a) explains that the
perfecting of an appeal stays proceedings in the trial court “upon
the . . . order appealed from or upon the matters embraced therein or affected
thereby, including enforcement of the . . . order, but the trial court may
proceed upon any other matter embraced in the action and not affected by
the . . . order.” The purpose of the automatic stay provision is to preserve the
status quo and protect the appellate court’s jurisdiction. (Varian Medical
Systems Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)
“[A]n appeal does not stay proceedings on ‘ancillary or collateral
matters which do not affect the judgment [or order] on appeal’ even though
the proceedings may render the appeal moot. [Citation.]” (Varian, supra, 35
Cal.4th at p. 191.) Thus, “an appeal from an order denying a motion to
disqualify counsel does not automatically stay further trial court proceedings
on the merits because such proceedings would occur regardless of whether
the reviewing court affirms or reverses the order. [Citation.]” (Ibid.)
However, an order disqualifying an attorney is treated differently.
“[A]n appeal of an order disqualifying an attorney automatically stays
enforcement of the order.” (URS Corp. v. Atkinson/Walsh Joint Venture
(2017) 15 Cal.App.5th 872, 887 (URS).) The remaining trial court
proceedings are stayed in such a situation if they conflict with the appellate
court’s jurisdiction over the appeal. (Id. at p. 888.)
9
Here, the question is whether the ongoing proceedings in the DV
matter conflicted with the appellate court’s jurisdiction over the selection of a
particular attorney at the outset of litigation. Case law suggests that an
appealed order that disqualifies counsel establishes a mandatory injunction
because its enforcement changes the positions of the parties and requires
them to act in accordance with the order. (See URS, supra, 15 Cal.App.5th at
pp. 884-885.) Thus, an order disqualifying an attorney is automatically
stayed because doing so prevents mooting the appeal through the
replacement of counsel. (Id. at p. 886.)
In light of A.F.’s first appeal, we issued an order staying the
disqualification of counsel on January 12, 2022. Although the pending appeal
automatically stayed the order disqualifying Castro, because A.F. retained a
different attorney and substituted Smith for Castro, there was no longer any
conflict between her chosen representation and the appeal. In other words,
A.F.’s decision to replace Castro eliminated any need to stay the pending
litigation, and the court had subject matter jurisdiction to move forward.
II.
Appointment of a “Minor’s Counsel”
A.F. contends that the court’s appointment of a “minor’s counsel” in the
DV matter was not statutorily authorized.5
Statutory interpretation is a question of law, subject to de novo review.
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) “ ‘As in any case
5 A.F. filed a supplemental “Suggestion of Mootness” motion on March 8,
2023. In it, she indicates no subsequent “minor’s counsel” was appointed,
thereby making the appropriateness of appointing “minor’s counsel”
potentially moot. “[T]here are three discretionary exceptions to the rules
regarding mootness: (1) when the case presents an issue of broad public
interest that is likely to recur [citation]; (2) when there may be a recurrence
of the controversy between the parties [citation]; and (3) when a material
10
involving statutory interpretation, our fundamental task is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’ ” (People v. Cole
(2006) 38 Cal.4th 964, 974; People v. Murphy (2001) 25 Cal.4th 136, 142.) We
examine the statutory language and give it a plain and commonsense
meaning. (Cole, at p. 975.) If the statutory language is unambiguous, then
the plain meaning controls. (Ibid.) If the language supports more than one
reasonable construction, we can look to extrinsic aids like legislative history
and ostensible objectives. (Ibid.; In re Young (2004) 32 Cal.4th 900, 906.)
The written order asks Mendez to represent A.F. in the DV matter “as
part of her duties as minor’s counsel,” a role to which she was appointed in
the dissolution matter. Accordingly, we begin by evaluating the statutes that
authorize appointment of a “minor’s counsel.” These provisions primarily
appear in division 8 of the Family Code, addressing child custody.
Section 3150, subdivision (a) authorizes the court to appoint private
counsel to represent the interests of the child in a custody or visitation
proceeding if the court determines it would be in the best interest of the child
to do so, so long as appointed counsel meets the requirements of Rules 5.240,
5.241, and 5.242. Section 3011 provides a non-exhaustive list of specific
factors a court must consider when determining the custody and visitation
arrangement that is in the child’s “best interest.” (In re Marriage of Burgess
(1996) 13 Cal.4th 25, 31-32; see also §§ 3011 [listing factors to determining
“bests interest” of child in custody or visitation proceeding]; 3020, subd. (a)
question remains for the court’s determination [citation].” (Cucamongans
United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82
Cal.App.4th 473, 479-480.) We apply our discretion in this case because the
issue of whether the court has authority to appoint a “minor’s counsel” in a
DV matter is an issue of general public interest. Moreover, A.F.’s status as a
minor suggests this issue could arise again within the DV matter.
11
[policy is to ensure child’s health, safety, and welfare is court’s primary
concern in determining “best interest” of child]; 3040, subd. (a) [prioritizing
preferences according to the child’s “best interest”].)
Section 3151 provides that “[t]he child’s counsel appointed under this
chapter is charged with representation of the child’s best interests,” and it
clarifies that the counsel’s role “is to gather evidence that bears on the best
interests of the child, and present that admissible evidence to the court . . . .”
Additionally, “[i]f the child so desires, the child’s counsel shall present the
child’s wishes to the court.” (§ 3151, subd. (a).)
These statutes make clear that the appointment of a “minor’s counsel”
occurs in the context of a custody or visitation dispute, not in a civil DVRO
action. Section 3150 specifies that the authority to appoint counsel to
represent a child occurs “in a custody or visitation proceeding,” and
section 3152 charges the attorney with representing the child’s “best
interests,” a custody consideration. (See also §§ 3011; 3020, subd. (a); 3040,
subd. (a).) Moreover, section 3151 identifies a child’s best interests and a
child’s wishes as distinct. (See also In re David C. (1984) 152 Cal.App.3d
1189, 1207-1208 [explaining appointed counsel for child could conclude a
child’s best interests fall contrary to the stated desires of the child].)
The rules identified in section 3150 further highlight that this
authority relates to determining the minor’s “best interest” in a custody
dispute. For example, Rule 5.240 offers eight factors the court should
consider in determining whether to appoint a “minor’s counsel,” including
whether the best interest of the child appears to require independent
representation. (See also In re Marriage of Metzger (2014) 224 Cal.App.4th
1441, 1446.) Further, Rule 5.242, which governs counsel appointed to
represent a minor in a custody or visitation proceeding under section 3150,
12
references the “best interest” standard identified in section 3151.
(Rule 5.242(a), (i), (j).) The focus on the child’s “best interests” in custody and
visitation matters underscores that the role a “minor’s counsel” plays is
distinguishable from that of an attorney who represents a minor in a DVRO
action.
We addressed the role of a “minor’s counsel” in our previous opinion, in
A.F. v. Jeffrey F. (2022) 79 Cal.App.5th 737. There, we contrasted the roles of
a “minor’s counsel” and the minor’s attorney in a DVRO action: “A neutral
minor’s counsel in a dissolution plays an entirely different role than counsel
hired in a civil matter. In family court, counsel for a minor has a statutorily-
imposed duty to present to the court recommendations based on what the
attorney believes is in the best interests of the child in addition to the child’s
wishes. [Citations.] In a civil matter, attorneys representing minors—or any
other party who has a GAL—are bound by Business and Professions Code
section 6068 and the State Bar Rules of Professional Conduct and have an
obligation to zealously represent their clients’ interest within the bounds of
the law. [Citations.]” (Id. at pp. 751-752.)
We further noted that because A.F. raised her allegations in a DVRO
petition as permitted by the DVPA, and not in the custody context, she was a
party to the action itself and therefore entitled to her own attorney, distinct
from a “minor’s counsel.” (A.F. v. Jeffrey F., supra, 79 Cal.App.5th at p. 752,
citing §§ 6211, subds. (f), 6301, subd.(a), 6301.5.) Thus, we have already, at
least implicitly, addressed this issue.6
In the matter before us, the court recognized A.F. has a right to hire
her own attorney, but after finding that A.F. was not competent to select
6 The court issued the appealed order on January 4, 2022. We filed our
opinion in A.F. v. Jeffrey F., supra, 79 Cal.App.5th 737 on May 18, 2022.
13
counsel and that she did not have the capacity to enter a contract with Smith,
the court appointed the same attorney previously appointed as a “minor’s
counsel” in the dissolution matter to represent A.F. “as a part of her duties as
minor’s counsel.” This was error. A.F. is entitled to her own attorney in the
DV matter.
We observe that even though the DV matter and the dissolution matter
are distinct, they are related because the outcome of the DVRO request will
impact custody and visitation. Either the court will issue the restraining
order, which conflicts with the joint custody order, or it will deny the request,
at which time Father will seek support in reunifying with A.F. Thus, while
the custody determinations will happen in the separate dissolution matter,
we understand the court’s desire to make decisions with the full picture in
mind.
We also acknowledge Father’s concern that A.F.’s decision to pursue a
DVRO with Mother as her GAL initially, instead of Mother separately
seeking a change in custody order in the dissolution matter, avoided the
traditional child custody procedures. We understand one consequence of this
approach has been that Father cannot visit with A.F. pending the outcome of
the DV matter, in contrast to the options available for ongoing supervised
contact available through traditional custody and visitation procedures. (See
§ 3100, subds. (a), (c)). We are sensitive to Father’s concern that these tactics
are driven by Mother instead of A.F. However, the law is clear. A.F. has the
right to file a DVRO petition under the DVPA on her own behalf.
III.
Removal of Smith as Attorney for A.F.
After the court ordered a “minor’s counsel” for A.F. in the DV matter, it
voided the purported contract between A.F. and Smith, and it effectively
14
disqualified Smith, explaining that A.F. would “not be permitted by the Court
to substitute Mr. Smith in for her appointed counsel, Ms. Mendez.” The court
offered three reasons for its decision. First, it concluded A.F. did not have the
capacity to enter the contract with Smith. Second, it similarly found that
A.F. could not understand the possible conflict arising from the third-party
payment detailed in the contract with Smith and therefore could not waive it.
Third, it found that Smith did not meet the standards set forth in Rule 5.240,
which details the requirements of an appointed “minor’s counsel.” We
address each of the court’s reasons for removing Smith separately.
A. Standard of Review
We review an attorney’s disqualification for an abuse of discretion
(In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561; Jessen v.
Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705) and “accept[ ] as
correct all of [the court’s] express or implied findings supported by
substantial evidence.” (City National Bank v. Adams (2002) 96 Cal.App.4th
315, 322.) We presume the trial court’s order is correct, and we indulge all
presumptions to support the order, resolving conflicts in favor of the
prevailing party and the trial court’s resolution of any factual disputes.
(Zimmerman, at pp. 561-562.) “In exercising discretion, the trial court is
required to make a reasoned judgment which complies with applicable legal
principles and policies.” (Id. at p. 561.) “We will reverse the trial court’s
ruling only where there is no reasonable basis for its action.” (City National
Bank, at p. 323.)
B. Capacity and Competency to Contract
The court considered whether A.F. had the capacity to hire Smith. It
opined that its authority to make this inquiry derives from Civil Code
15
section 1550 and Family Code section 6602, and it found Akkiko M. v.
Superior Court (1985) 163 Cal.App.3d 525 (Akkiko) instructive.
Akkiko occurred in the dependency context. (Akkiko, supra, 163
Cal.App.3d at p. 527.) The primary conflict in Akkiko is not present here.
There, the court considered the interplay between Welfare and Institutions
Code sections 317 and 318, which direct a court to appoint counsel, and
Welfare and Institutions Code section 349, which specifies that a dependent
minor has the right to select counsel of his or her choosing. The Department
of Social Services argued that the minor could not appoint counsel of her
choosing because the litigation had to be managed by a court-appointed GAL.
(Akkiko, at pp. 527-528.) But the appellate court explained that in the
dependency context, the role of the GAL was “of a limited nature, designed
primarily to assure federal assistance” and “many of the responsibilities
normally associated with a guardian ad litem have been placed upon
counsel[ ] . . . by [Welfare and Institutions Code] section 318 . . . .” (Akkiko, at
pp. 529-530.) Thus, in the dependency context, the presence of a GAL did not
prevent the dependent minor from selecting an attorney. Still, the appellate
court limited the minor selecting his or her own attorney to a situation in
which the court was “satisfied that the minor is competent to select counsel”
and in which “counsel is prepared to meet the obligations imposed by
section 318.” (Akkiko, at p. 530.)
Unlike statutes in the dependency context, nothing in the DVPA
expressly authorizes a minor to select an attorney independently. However,
the court was persuaded that a minor petitioning for a DVRO, like a minor in
the dependency context, would still need to be competent to retain his or her
own counsel, and the selected attorney would need to meet certain
statutorily-based requirements, here Rule 5.242. As we next detail, because
16
we agree that a minor’s competency is a prerequisite to retaining counsel of
his or her choosing, and because the court found A.F. lacked competency and
capacity to contract with Smith, its removal of Smith did not abuse its
discretion. However, its prohibition on Smith serving as an attorney for A.F.
in the DV matter under any circumstance was error.
To enter a contract with counsel, A.F. must first be capable of
contracting. (Civ. Code, § 1550.) A person who lacks capacity to make
decisions must appear by a guardian, conservator, or GAL. (Code Civ. Proc.,
§ 372; see, e.g., Briggs v. Briggs (1958) 160 Cal.App.2d 312, 318 (Briggs)
[defendant incompetent due to insanity could appear only by GAL];
Garbutt v. Campbell (1955) 130 Cal.App.2d 167, 168 [general rule is that
infant must appear by guardian or GAL].) This is consistent with
section 6601, which permits a minor7 to enforce his or her rights in a civil
action “in the same manner as an adult, except that a guardian must conduct
the action or proceedings” (§ 6601, italics added) and with Code of Civil
Procedure section 372, which requires minors, as well as those who lack legal
capacity to make decisions, to appear by a guardian or GAL appointed by the
court in which the proceeding is pending or by a judge in the case. Further,
even Family Code section 6229 and Code of Civil Procedure section 374,
which permit minors under age 12 to appear and request restraining orders
without having an attorney present, still require the presence of a guardian
ad litem. This is because minors generally lack capacity to sue on their own.
(See Johns v. County of San Diego (1997) 114 F.3d 874, 877-878.) Thus, it
was proper to evaluate A.F.’s competency and capacity to independently
select counsel.
7 The Family Code defines a minor as “an individual who is under 18
years of age.” (§ 6500.)
17
The court interviewed A.F. and, based on the interview, it concluded
A.F. “did not have the capacity to enter the contract” because “she did not
understand why she was hiring him or the terms of his engagement.” The
court found that A.F. was “not aware of the most basic information required
of a client.” A.F. was not aware of what her attorney was charging or the
definition of “retainer,” could not explain why she selected this particular
attorney, and did not know how to discharge him if she became dissatisfied.
A.F. told the court she wanted to hire her own attorney, not have one
appointed, but she could not explain why.8
A.F. does not challenge these factual findings in her appeal. Instead,
she contends that the proper consequence of the court’s finding is simply that
the fee agreement is not enforceable. We agree that the court’s authority to
reject a fee agreement is not synonymous with the court’s authority to
disqualify counsel. However, the court did not simply reject the fee
agreement. It found the contract void because it concluded A.F. was not
competent to select her own counsel. This finding did not abuse the court’s
discretion.
C. Third-Party Fee Agreement
A.F. does not challenge the court’s authority to review the agreement;
she questions the consequences of the court’s failure to approve the
agreement. Here, the court rejected the fee agreement and voided the
contract between Smith and A.F. because it included Grandfather as a third-
party guarantor.
8 The finding of incompetency suggests the court should have required
Minor to appear by GAL under these circumstances, not appoint a “minor’s
counsel.” (Civ. Proc. Code, § 372; see, e.g., Briggs, supra, 160 Cal.App.2d at
p. 318.)
18
Section 6602 states: “A contract for attorney’s fees for services in
litigation, made by or on behalf of a minor, is void unless the contract is
approved, on petition by an interested person, by the court in which the
litigation is pending . . . . If the contract is not approved and a judgment is
recovered by or on behalf of the minor, the attorney’s fees chargeable against
the minor shall be fixed by the court rendering judgment.” California courts
have interpreted contracts for legal services usually to be a necessary; thus,
while a contract that is not approved by the court is not enforceable, the
reasonable value of the attorney fees for legal work conducted on behalf of a
person unable to make a valid contract remains recoverable. (Leonard v.
Alexander (1942) 50 Cal.App.2d 385, 387, 388-389; see In re Estate of Doyle
(1932) 126 Cal.App. 646, 647-648 [person incompetent to enter binding
contract liable for reasonable value of attorney services rendered in attempt
to restore person deemed incompetent to capacity]; see also Chiu v. Chiu
(2022) 86 Cal.App.5th 929, 937, fn. 12 [explaining section 6602 governs
attorney’s ability to recover fees in a contract with a minor and does not
preclude a minor from retaining counsel].) A.F. does not directly challenge
the court’s decision to reject the fee agreement or otherwise claim the court’s
rationale was misguided. Instead, she simply contends the resulting
disqualification was an improper consequence. We agree.
However, as we have already explained, the court did not remove Smith
simply because it rejected the fee agreement. Its determination that A.F.
lacked capacity to contract and was not competent to select an attorney
independently impacted A.F.’s ability to enter an agreement that used a
third-party guarantor as well. Rule 1.8.6 of the Rules of Professional
Conduct prohibits an attorney from entering an agreement with or accepting
compensation from a third party to represent a client without obtaining
19
informed, written consent from the client. Not only did A.F. fail to provide
informed, written consent by neglecting to initial the language reflecting her
understanding, but her lack of capacity to enter the agreement separately
prevented her from providing this consent.
Further, the court found a potential conflict of interest between
Grandfather and A.F., noting that Grandfather had previously supported
Mother in the dissolution matter in which Mother opposed shared custody
with Father. The court explained that if A.F. were to change her mind about
seeking the DVRO or visiting with Father, Grandfather might pressure A.F.
to pursue the matter anyway.
In her appellate brief, A.F. refers to this potential conflict as
“hypersensitivity to ethical nuances,” but she does not develop her complaint
or explain why the court’s concerns about the potential for influence or
conflict of interest are unreasonable; nor does she explain why the court’s
determination that she lacks the capacity to waive potential conflicts is
simply a “hypersensitivity.” Although she argues that the court failed to
consider the substantial continuing effect standard, A.F. does not explain
how this standard applies to (or is not impacted by) the third-party payment
concerns the court expressed. Thus, we deem this argument waived. (See
Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [waiving
issues not supported by reasoned argument]; Paterno v. State of California
(1999) 74 Cal.App.4th 68, 106 [appellate court not obligated to examine
undeveloped claims].)
Although the court appropriately removed Smith based on A.F.’s
incapacity to select him herself, disqualifying an attorney as a result of
rejecting the fee agreement was an abuse of discretion because it incorrectly
applied the law.
20
D. Court’s Evaluation of Counsel
A.F. contends that the court did not find that Smith’s service as her
attorney in the DV matter would prejudice her, and his removal was
therefore improper. She indicates a court must first consider the “substantial
continuing effect standard,” which requires “a genuine likelihood that the
attorney’s misconduct will affect the outcome of the proceedings.” She
maintains that the court’s determination that Smith lacked specialized
qualifications does not meet that standard.
In City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, the
case upon which A.F. relies for this proposition, we asked whether it was
appropriate to disqualify the entire city attorney’s office after one of its
attorneys violated attorney-client privilege and former Rule 2-100 of the
Rules of Professional Conduct. (City of San Diego, at pp. 469-470.) In that
context, we explained that “disqualification of counsel is a prophylactic
remedy designed to mitigate the unfair advantage a party might otherwise
obtain if the lawyer were allowed to continue representing the client.” (Id. at
pp. 470-471.) To that end, we considered whether the “ ‘status or misconduct
which is urged as a ground for disqualification will have a continuing effect
on the judicial proceedings which are before the court. . . .’ [Citation.]” (Id. at
p. 471.)
The circumstances of the disqualification here are distinguishable
because A.F.’s attorney did not achieve an unfair litigation advantage by
violating any rules. Still, the court here considered Smith’s “status” as a
ground for effective disqualification. It expressed concern about the
continuing effect of Smith’s representation on the proceedings, explaining
that family court has established standards for a “minor’s counsel” that
Smith did not meet. The court said that it would create “a very, very
21
dangerous and tumultuous situation in the family court if we started to allow
minors to retain counsel who did not meet the requirements of minor’s
counsel appointed by the court.” Its order states that those standards exist
“to assure the children receive representation from attorneys with knowledge
base and skill set required to represent a child effectively in a Family Court
proceeding.” Thus, Smith’s failure to meet them would have a continuing
effect on the representation. Moreover, although the court agreed to hear
Smith’s argument for why he was competent to represent a minor in family
court, it found “[h]e did not present to the Court any alternative
qualifications, other than the fact that he had been retained.”
While the court appropriately considered the impact of Smith’s
continued representation in the matter, we nonetheless conclude that it
abused its discretion by relying on the factors detailed in Rule 5.240 and the
requirements in Rule 5.242, which “governs counsel appointed to represent
the best interest of the child in a custody or visitation proceeding under
Family Code section 3150.” Those standards address appointment of a
“minor’s counsel,” who, as we detailed ante, serves a different role for a
different purpose than retained counsel in a DVRO matter. Rules 5.240 and
5.242 do not control the court’s inquiry in this context. Thus, the reliance on
Smith’s failure to comply with Rule 5.242 as a basis for his disqualification
was an abuse of discretion.
E. A.F.’s Due Process Rights
A.F. contends the court violated her due process rights by disqualifying
her retained attorney without first providing her with reasonable notice and
a meaningful opportunity to be heard.
Due process is a flexible concept that depends on all the circumstances
of the case and a balancing of various factors. (In re Earl L. (2004) 121
22
Cal.App.4th 1050, 1053.) It requires notice that is reasonably calculated to
apprise the interested parties of the pendency of the action and afford them
an opportunity to object. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418;
In re Justice P. (2004) 123 Cal.App.4th 181, 188.)
The court informed the parties regarding the issues it would consider
at the November 1 hearing: (1) its authority to review and approve the fee
agreement; (2) its authority to appoint a “minor’s counsel” in the DV matter;
(3) whether the matter was stayed pending the outcome of the appeal. It
emphasized that it would be hearing legal arguments and told the parties
there would be “[n]o testimony, legal briefing only. . . .”
However, after hearing arguments from counsel, the court commented
that it had to be satisfied that A.F. was competent to select counsel and had
capacity contract, and it had to approve the contract. Thus, it needed to
interview A.F. It asked A.F. to appear that afternoon.
That afternoon, A.F. appeared, and the court asked what she
understood about Castro’s disqualification due to conflict of interest. The
court told A.F. it had to decide if she had “a good enough understanding of
what a contract with an attorney would mean,” so it was going to ask her
some questions. It asked how she met her attorney, who else she spoke with,
whether she met with or interviewed more than one possible attorney, and
what she understood from reading the contract with Smith. It asked A.F.
what Smith was hired to do, what role A.F. understood Grandfather to play
in the agreement, and what A.F. would do if she had a disagreement with her
attorney.
Because there was no GAL at this point in the proceedings and the
court expressly prohibited Smith from meeting with A.F. before it ruled on
the fee agreement, Smith presumably did not meet with A.F. to help her
23
prepare for the interview. Further, while the court did not expressly prohibit
Grandfather or Mendez from explaining to A.F. why the court wanted to
interview her, it instructed them to tell A.F. she did not need to be nervous
because the court was “just going to chat” with her, without reference to the
substance of the conversation. When A.F. appeared, the court asked her if
she had an understanding about why the court wanted to meet with her,
suggesting the court expected A.F. to know the purpose of the interview. A.F.
was uncertain; she asked the court to explain the reason for their meeting.
While A.F. knew about the pending hearing and the issues the court planned
to consider, this series of events suggests A.F. did not have notice that she
would need to appear personally or of the reason for her appearance.
A.F. and Smith knew the hearing would address her legal
representation in the DV matter, and Smith argued the merits of her position
at the hearing. To the extent that A.F.’s position is that she should have
received notice regarding the interview in advance of the hearing date, it is
not clear how that would have changed the outcome. She implies that her
answers to questions could have been different with preparation from Smith,
but we note the point of the interview was to determine what A.F. knew and
understood on her own. Further, even if her attorney could have objected to
the court’s specific questions during the interview, A.F. does not explain how
those objections would have led the court to a different conclusion. Although
interviewing A.F. without A.F. knowing the purpose or topic of the interview
was inappropriate, any due process violation resulting from problems with
the notice did not prejudice A.F. (See Chapman v. California (1967) 386 U.S.
18; In re Stacy T. (1997) 52 Cal.App.4th 1415, 1425 [identifying standard for
evaluating due process violation].)
24
We also do not find persuasive A.F.’s contention that the court’s
questions had little relevance to her capacity to contract. She does not
develop this argument, but the court’s questions suggest it considered many
of the factors raised in Probate Code sections 811 and 812, which address
capacity to make decisions. In particular, the court’s questioning about her
understanding of particular legal terms, like “retainer,” as well as her
understanding of why her first attorney was disqualified relate to her
information processing skills, including the ability to reason logically and use
abstract concepts. (See Prob. Code, § 811, subd. (a)(2).) Further, her
responses regarding how she came to hire Smith, how she would go about
evaluating whether to hire a particular attorney, and how she would fire an
attorney relate to whether she can plan, organize, and carry out actions in
self-interest. (Ibid.) These questions also addressed whether A.F.
understood her rights, duties, and responsibilities under the contract she
signed, as well as the risks associated with hiring an attorney or alternatives
to hiring Smith. (Id., § 812, subds. (a), (c).)
F. Appointment of GAL
A.F. offers an additional reason Smith should not have been
disqualified: the subsequent removal of Mendez as “minor’s counsel” in the
DV matter and appointment of a GAL. A.F. explains the court’s subsequent
appointment of a GAL could make the disqualification of Smith moot,
because a GAL has the authority to waive conflicts of interest on a minor’s
behalf. However, the appealed order states that Smith “cannot represent
25
[A.F.] in this proceeding,” and nothing before us indicates that has changed.9
Further, after the appointed GAL passed away, the court declined to appoint
a new GAL.10
We observe that Code of Civil Procedure section 372,
subdivision (b)(1)(C) permits a 12 year old to appear without a guardian,
counsel, or GAL to seek a restraining order, but it also grants the court
discretion to appoint a GAL to assist the minor in obtaining the order. Given
the court’s findings regarding A.F.’s lack of competency to retain counsel on
her own behalf, the appointment of a GAL to represent A.F.’s interests seems
prudent if not necessary. As A.F. notes, a GAL oversees litigation-related
interests: “ ‘In the adversarial context, the guardian ad litem’s function is to
protect the rights of the [minor], control the litigation, compromise or settle
the action, control procedural steps incident to the conduct of the litigation,
and make stipulations or concessions in the [minor] person’s interests.
[Citation.] In such cases, the guardian ad litem’s role is “more than an
attorney’s but less than a party’s” [Citation.]’ ” (A.F. v. Jeffrey F., supra, 79
Cal.App.5th at p. 747, quoting In re Charles T. (2002) 102 Cal.App.4th 869,
875-876.) Here, where the court concluded A.F. was not competent to select
her own attorney or to waive any potential conflicts of interest, the court
9 The minutes stated the court would “appoint another attorney for [A.F.]
in the dissolution case,” and noted the objection to the appointment of one in
the DV matter. This information, in addition to the statements made in
A.F.’s supplemental “Suggestion of Mootness” motion, indicates there is no
longer a “minor’s counsel” in the DV matter.
10 We grant A.F.’s motion to augment the record to include the court’s
order denying the request to appoint her grandmother as GAL after her
grandfather’s death. The elimination of a GAL places any issues that could
have been potentially mooted by the GAL’s decision-making authority back in
controversy.
26
should have appointed a GAL to protect A.F.’s rights and control the
litigation. The subsequent removal of a GAL seems to contradict the court’s
earlier conclusion regarding A.F.’s competency without any corresponding
finding that A.F.’s competency has changed.
DISPOSITION
The portion of the order appointing a “minor’s counsel” in the DV
matter, case No. 21FDV01528N, is reversed. The portion of the order
prohibiting Smith from representing A.F. in the DV matter is reversed. In all
other respects, the order is affirmed. We express no opinion regarding
whether Smith’s disqualification or removal would be appropriate for some
other reason.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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