Perez v. County of Kern

[7] 8 UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 ALEJANDRO ANDRES PEREZ, et al., Case No. 1:25-cv-00358-KES-CDB 12 Plaintiffs, ORDER ON PLAINTIFFS’S EX PARTE APPLICATION FOR APPOINTMENT OF 13 v. GUARDIAN AD LITEM 14 COUNTY OF KERN, et al., (Docs. 8, 9) 15 Defendants. [16] 17 Background 18 Plaintiff Ashley Sinden (“Plaintiff”), as the natural parent and purported successor in interest of 19 decedent minor Alejandro Andres Perez (“A.P.”), initiated this action with the filing of a complaint on 20 March 25, 2025. (Doc. 1). In the complaint, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 to 21 recover damages for Defendants’ actions and/or failures resulting in the wrongful death of A.P. while 22 in and under Defendants’ care, custody, control, and supervision. (Id. ¶ 3-4). 23 The complaint alleges that A.P. is the deceased minor child of Sinden and that Plaintiff, as the 24 natural mother of A.P. whose parental rights were never terminated, has standing as A.P.’s rightful heir 25 under C.C.P. § 377.60(a) and Probate Code § 6402(b) and § 6450(a) to bring this action. (Id. ¶¶ 1, 4, 26 6). There is no known guardian or conservator on behalf of A.P. to initiate a claim or lawsuit. (Id. ¶ 7). 27 The complaint alleges that Sinden brings claims “by and through her respective guardian ad litem” in 28 both her individual capacity and as A.P.’s successor in interest. (Id. ¶ 1). 1 Pending before the Court is an ex parte application for appointment of guardian ad litem brough 2 by Sinden’s counsel, Robert Ross Powell. (Doc. 8). The application is supported by counsel’s 3 declaration and the declarations of Sinden’s stepfather (Edwin Walton III), and the proposed guardian 4 ad litem (attorney Donnie R. Cox). (Docs. 8-1, 8-2, 8-3). In short, counsel asserts that Sinden lacks the 5 capacity to sue and to understand the nature and consequences of the proceedings given her “mental 6 disability and severe and ongoing drug-abuse issues.” (Doc. 8 at 3). Relevant here, counsel asserts that 7 Sinden “has been unable to sign any means of consenting to a guardian ad litem because she is currently 8 [as of the date of filing] on a 5150 hold at the Kern Medical Center in Bakersfield, California.” (Doc. 8 9 at 3). In a supplement filed April 14, 2025, counsel attests that, based on documents in his possession, 10 it is counsel’s belief that Ashley Sinden is not in a position to adequately care for herself or make 11 informed decisions regarding her own welfare. This situation underscores the urgent need for a Guardian 12 Ad Litem to be appointed on her behalf.” (Doc. 9). 13 Governing Law 14 1. Ex Parte Relief 15 “The expression ‘ex parte motion’ is a term of art. In its pure form it means a request a party 16 makes to the court without any notice to the other side.” Mission Power Eng’g Co. v. Cont’l Cas. Co., [17] 883 F. Supp. 488, 490 (C.D. Cal. 1995). “Ex parte relief is generally disfavored when relief may be had 18 through a regularly noticed motion.” Hufnagle v. Rino Int’l Corp., No. CV 10-08695 DDP (VBKx), [19] 2012 WL 6553743 , at *1 (C.D. Cal. Dec. 14, 2012). Local Rule 144(e) provides in relevant part: “Ex 20 parte applications to shorten time will not be granted except upon affidavit of counsel showing a 21 satisfactory explanation for the need for the issuance of such an order and for the failure of counsel to 22 obtain a stipulation for the issuance of such an order from other counsel or parties in the action.” Thus, 23 courts will consider an ex parte motion where “the moving party’s cause will be irreparably prejudiced 24 if the underlying motion is heard according to regular noticed motion procedures.” Mission Power 25 Eng’g Co., 883 F. Supp. at 492 . 26 2. Competency 27 The standard for determining competency is supplied by the law of the plaintiff’s domicile. See 28 Fed. R. Civ. P. 17(b)(1). Under California law, a party is incompetent “if he or she lacks the capacity 1 to understand the nature or consequences of the proceeding, or is unable to assist counsel in the 2 preparation of the case.” Golden Gate Way, LLC v. Stewart, No. C 09–04458 DMR, 2012 WL 4482053 , 3 *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 (2001)); see Cal. 4 Civ. Proc. Code § 372 (“When … a person who lacks legal capacity to make decisions … is a party, that 5 person shall appear either by a guardian or conservator of the estate or by a guardian ad litem[.]”). 6 Typically, “a guardian will not be appointed for an adult unless the person gives consent or upon notice 7 and a hearing.” Jurgens v. Dubendorf, No. 2:14-CV-2780-KJM-DAD, 2015 WL 6163464 , at *3 (E.D. 8 Cal. Oct. 19, 2015); accord Golden Gate Way, 2012 WL 4482053 , *3 (relying on medical records and 9 the Court’s observations of the party at a hearing to conclude he did not have the capacity to participate 10 in the litigation in any meaningful fashion). 11 Under Rule 17(c), a district court must hold a competency hearing “when substantial evidence 12 of incompetence is presented.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); see Ferrelli v. 13 River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003) (explaining that “due process 14 considerations attend an incompetency finding and the subsequent appointment of a guardian ad litem”); 15 Thomas v. Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990) (observing that the appointment of a guardian 16 ad litem implicates due process concerns because it deprives a litigant of the right to control litigation 17 and subjects them to possible stigmatization). The Ninth Circuit has not clearly stated what constitutes 18 “substantial evidence” of incompetence warranting such a hearing. See Hoang Minh Tran v. Gore, No. 19 10-cv-464–GPC (DHB), 2013 WL 1625418 , at *3 (S.D. Cal. April 15, 2013). However, the Ninth 20 Circuit has indicated that sworn declarations from the allegedly incompetent litigant, sworn declarations 21 or letters from treating psychiatrists or psychologists, and medical records may be considered in this 22 regard. See Allen, 408 F.3d at 1152–54; see also Hoang Minh Tran, 2013 WL 1625418 , at *3. Such 23 evidence must speak to the court’s concern as to whether the person in question is able to meaningfully 24 take part in the proceedings. See AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1042 (E.D. Cal. 25 2015). Under California law, the standard of relevance for purposes of weighing incompetency is 26 viewed broadly and a trial judge must “clearly bring out the facts.” In re Conservatorship of Pamela J., [27] 133 Cal. App. 4th 807, 827 (2005). [28] 1 “A[n] incompetent person who does not have a duly appointed representative may sue by a next 2 friend or by guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate 3 order—to protect a minor or incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 4 17(c)(2). Within its obligation of assessing competency, a district court has broad discretion to 5 determine the suitability of appointing a guardian ad litem. See United States v. 30.64 Acres of Land, [6] 795 F.2d 796, 805 (9th Cir. 1986). 7 “[N]otwithstanding the incompetency of a party, the guardian may make binding contracts for 8 the retention of counsel and expert witnesses and may settle the claim on behalf of his ward.” 30.64 9 Acres of Land, 795 F.2d at 805 . However, a guardian ad litem who is not an attorney must be represented 10 by counsel in order to litigate a case on another’s behalf. See Johns v. Cnty. of San Diego, 114 F.3d 11 874, 877 (9th Cir. 1997); Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1127 (9th Cir. 12 2007) (explaining the right to proceed pro se is personal to the litigant). 13 Discussion 14 First, the Court finds that Sinden has failed to demonstrate an entitlement to ex parte relief. 15 Although in his supplemental filing counsel for Sinden attests that there is an “urgent need” to appoint 16 a guardian ad litem (Doc. 9), counsel offers no details or argument as to why Sinden’s interests “will be 17 irreparably prejudiced if the underlying motion is heard according to regular noticed motion 18 procedures.” Mission Power Eng’g Co., 883 F. Supp. at 492 . 19 Second, while the undersigned acknowledges counsel’s uneasiness at sharing additional details 20 about Sinden’s condition (see Doc. 9 ¶ 3), the Court is unable to determine the appropriateness of 21 appointing a guardian ad litem without first deciding the issue of Sinden’s competency -- particularly 22 because Sinden reportedly either cannot or does not consent to the appointment of a guardian ad litem. 23 While the observations and assessments of experienced counsel and a close family member are relevant 24 to the inquiry, the Court does not presently have before it either opinions of qualified medical 25 professionals pertaining to or medical records documenting Sinden’s alleged “mental disability and 26 severe and ongoing drug-abuse issues.” And while the undersigned acknowledges that Sinden is 27 unavailable at least temporarily due to a reported 5150 hold, the Court perceives that an assessment of 28 Sinden’s competency would be incomplete without the ability to inquire of and observe her. Cf. Golden 1 || Gate Way, 2012 WL 4482053 , *3 (relying on medical records and the Court’s observations of the par 2 || at a hearing to conclude he did not have the capacity to participate in the litigation in any meaningf 3 || fashion). 4 Given that Plaintiff has not filed summonses returned executed and none of the Defendants ha‘ 5 || appeared in the action, the Court will convert the scheduling conference into a competency hearing ar 6 || direct Plaintiff to appear, along with any other medical or lay witnesses competent to testify concernit 7 || Plaintiff's competency. In connection therewith, the Court will direct Plaintiff to promptly ser 8 || Defendants with the summons and complaint and copies of Plaintiff's guardian ad litem filings (Doc 9 || 8, 9) sufficiently in advance of the competency hearing to permit Defendants an opportunity to revie 10 || the pleadings and file any response. 11 Conclusion and Order 12 Accordingly, IT IS HEREBY ORDERED: 13 1. The scheduling conference set for June 30, 2025, at 9:00 AM (Doc. 5) is VACATED. 14 2. Plaintiff shall promptly serve Defendants with the summons and complaint, copies | 15 || Plaintiffs guardian ad litem filings (Docs. 8, 9), and copies of this order. 16 3. A competency hearing is set for June 30, 2025, at 10:30 AM, in-person in Bakersfiel 17 || California (CDB) before Magistrate Judge Christopher D. Baker. 18 4. No later than June 23, 2025, Defendants may file a response/opposition to Plaintiff's pendit 19 || motion for appointment of guardian ad litem. 20 5. Plaintiff and any witnesses proffered to testify as to Plaintiff's competency shall appear at tl 21 || competency hearing. 22 ||1T IS SO ORDERED. 23 | wD Bo Dated: _ April 22, 2025 24 UNITED STATES MAGISTRATE JUDGE