Judge James C. Chalfant, Case Number: 24STCP03506, Date: 2025-04-17 Tentative Ruling

Aparicio v. Watrobski et al.,

24STCP03506

Tentative decision on order to show cause re: GAL and attorney

The court has ordered representatives Alice Wong Aparicio (“Alice”) and Luis A. Aparicio (“Luis”) and Respondents Michael D. Watrobski (“Watrobski”), Leonard Aguilar (“Aguilar”), and Ashley Estis (“Estis”) (collectively, “DCFS” or “Department”) to show cause regarding the authority of Alice and Luis to represent Silvana Petitioner Silvana Stephanie Aparicio (“Silvana”).

The court has read and considered the cross-briefs and renders the following tentative decision.

Petitioner Aparicio filed her Petition on October 29, 2024 for administrative mandamus against Respondents Watrobski, Aguilar, and Estis. The Petition alleges in pertinent part as follows.

On July 9, 2019, Estis submitted a Detention Report (“Report”). Pet. 4:4-5[1]. The Report included false information, including in part that during an incident on June 17, 2019, Silvana entered the home of her parents Alice and Luis and began throwing objects around. Pet. 4:4-25; 4:11-13.

Santa Fe Springs filed a petition to remove Silvana’s son, Alex Aparicio (“Alex”), from the Alice and Luis’s home after the June 17, 2019 incident. Pet. 2:16-17. On July 18, 2019, the Juvenile Dependency Court issued a Do Not Remove Order. Pet. 2:1-20. The Dependency Court further ordered Family Reunification Services on September 12, 2019. Pet. 2:21-22. The case was expunged after Silvana completed 52 weeks of parenting classes. Pet. 2:23-26.

Silvana received a letter from DCFS dated July 3, 2024 (“CACI Notification”), notifying her that DCFS had completed an investigation and sustained an allegation against Silvana of child abuse or severe neglect. Pet. 3:7. Silvana requested a grievance hearing on July 25, 2024 by certified mail. Pet. 2:7-8.

DCFS responded with a Letter of Denial dated August 1, 2024. Pet. 2:8-9. In the Letter of Denial, DCFS said it would not grant a grievance hearing because the matter already had been adjudicated in Juvenile Dependency Court. Pet. 2:12-14.

Silvana has exhausted the available administrative remedies required. Pet. 2:27-4:25.

Silvana sent Watrobski notarized letters from Alice and Luis dated September 28, 2024 contesting that any abuse or neglect occurred. Pet. 3:2-6. Alice sent the letters again in October 2024. Pet. 3:18-20. Neither correspondence received a reply. Pet. 3:16-17, 3:20. Alice also called Watrobski and left a voice mail, receiving no response. Pet. 3:21-23.

Silvana seeks (1) her removal from the Child Abuse Central Index (“CACI”); (2) attorney fees and costs; and (3) such other relief as the court considers proper.

On February 6, 2025, the court ordered the parties to meet and confer regarding (1) Alice’s authority to act on a power of attorney without an order for guardian ad litem (“GAL”), and (2) child endangerment hearing and whether CACI hearing is required.

On March 6, 2025, the court ordered the parties to show cause regarding Alice and Luis’s authority to represent Silvana.

“No person shall practice law in California unless the person is an active licensee of the State Bar.” Bus. & Prof. Code §6125. Any person “advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, . . . is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment.” Bus. & Prof. Code §6126 (a).

“The State Bar Act, section 6000 et seq., was enacted in 1927 to set forth ‘a comprehensive scheme regulating the practice of law in the state.’” Birbrower, Montalbano, Condon & Frank v. Superior Court, (“Birbrower”) (1998) 17 Cal.4th 119, 127. Subsequent courts have found that the State Bar Act implicitly adopted the common law definition of “practice law” as “‘the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense, it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.’” Id. at 142. The California Supreme Court has held that “participation on behalf of another in hearings and proceedings” constitutes the practice of law whether in a courtroom, or before an administrative board or commission. Baron v. City of Los Angeles, (1970) 2 Cal.3d 535, 543. “The cases uniformly hold that the character of the act, and not the place where it is performed, is the decisive element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of law, even if conducted before an administrative board or commission.” Benninghoff v. Superior Ct., (2006) 136 Cal. App. 4th 61, 68.

Where a GAL is appointed for a party in the case, the GAL must be represented by an attorney. Torres v. Friedman, (“Torres”) (1985) 169 Cal.App.3d 880, 887.

Alice and Luis acknowledge, on review of precedent, that they are not permitted to represent Silvana by law. Aparicio Decl. 3:20-24. Alice and Luis request an exception on the basis that they understand the complexity of the legal issues in this case, and do not want a GAL appointed for Silvana. Aparicio Decl., 3:20-24.

In the alternative, they request to allow Silvana to self-represent in spite of any issues of capacity. Aparicio Decl. 3:25-27. Alice and Luis are prepared to assist Silvana as necessary to understand and make decisions in this matter. Aparicio Decl. 4:3-8.

Alice and Luis do not want appointment of a GAL because DCFS is determined to remove Alex from Alice and Luis’s care, even after they adopted Alex on April 20, 2022. Aparicio Decl. 4:9-14. DCFS collaborates with outside entities, orchestrates scenarios, and has tricked Alice and Luis into signing paperwork in attempts to remove Alex from their care. Aparicio Decl., 5:17-6:11, Exs. 1-2. DCFS has also fraudulently ascribed developmental disorders to Alex. Aparicio Decl. 5:12-16.

This Petition was filed on October 29, 2024. By November 5, 2024, Kaiser Permanente had removed incorrect information, including false diagnoses for both Alex and Alice, from the medical records. Aparicio Decl. 6:9-17. Alice still possesses printed copies of the records including this incorrect information. Aparicio Decl. 6:16-17.

In June 2023, Alex’s preschool teacher incorrectly gave Alex failing grades in all areas. Aparicio Decl. 6:18-25. When confronted, the teacher claimed it was an accident and corrected it. Aparicio Decl. 6:23-25. She resigned the next week. Aparicio Decl. 10:5, Ex. 4.

Other incidents, including with Alex’s dentist and with Alice and Luis’s HOA, continued to occur. Aparicio Decl. 6:28-7:5.

Silvana, Alice, and Luis have contacted four attorneys to take their case, and none have been willing. Aparicio Decl. 7:6-10, 8:3-15. Attorney Timothy E. Nilan initially took their case to request an administrative hearing, but refunded the majority of their retainer when the hearing was rejected. Aparicio Decl. 7:6-8:11.

On February 6, 2025, the court held a Trial Setting Conference. Logan Decl., ¶7. Silvana did not appear at the conference, but Luis and Alice appeared, stating that they wished to represent Silvana. Logan Decl., ¶7. DCFS objected, and the court continued the conference to March 6, 2025, ordering the parties to meet and confer over the issues of Silvana’s legal capacity and legal representation. Logan Decl., ¶7.

On February 26, 2025, DCFS counsel Amber Logan, Esq. (“Logan”) met with Luis and Alice, who represented that Silvana was hospitalized and unable to attend. Logan Decl., ¶8. Logan informed Luis and Alice they could not legally represent Silvana under Bus. & Prof. Code sections 6125 and 6126. Logan Decl., ¶8. Logan asserted that Silvana requires a GAL if she is mentally or emotionally incapable of self-representation per Code Civ. Proc. section 372(a). Logan Decl., ¶8. Alice and Luis asserted they could represent her under a durable power of attorney. Logan Decl., ¶8. Alice also declared her intention to seek compensation for her time spent assisting Silvana. Logan Decl., ¶9. No agreement was reached. Logan Decl., ¶8.

Alice and Luis assert they are preparing documents for the court, not Silvana, and have also filed documents in their own names. Logan Decl., ¶10, Ex. A.

A document entitled “Answer to Defendant’s Attorney Amber A. Logan’s Strategy & Requests” filed on January 23, 2025 contains references to Silvana’s mental heath issues, including that Silvana is unable to understand and follow issues. Logan Decl., ¶¶ 11-12, Ex. B.

In preparing their cross-briefs, the parties reached the same conclusion, and so no longer substantively disagree on the law.

Under California law, no person shall practice law, including by representing another person, without an active California State Bar License. Bus. & Prof. Code §6125; Birbrower, supra, 17 Cal.4th at 142. Such unauthorized practice of law is a misdemeanor. Bus. & Prof. Code §6126. If a non-attorney GAL is appointed, that GAL must be represented by an attorney. Torres, supra, 169 Cal.App.3d at 887.

Alice and Luis acknowledge that an attorney-in-fact cannot represent the beneficiary in court. Pet. Br., pp. 2-3. They contend that an exception should be made for them to have authority to draft pleadings, file papers, make arguments, appear at hearings, and to advocate on and off the record for Silvana. These acts clearly constitute the “practice of law”. Pet. Br., p. 3.

Neither Alice nor Luis is licensed to practice law within the State of California. The law makes the unauthorized practice of law a crime. It is not a discretionary procedural requirement which the court can waive. Alice and Luis cannot represent Silvana and, if either is appointed as her GAL, they must retain an attorney to represent them.

Alice and Luis fall back on the prospect that Silvana can represent herself with Luis and Alice preparing court papers for her. This is an issue under CCP section 372(a) whether Silvana has the legal capacity to make decisions or is a person for whom a conservator has been appointed. That was not an issue the parties are required to address for the OSC. The court notes, however, that Luis and Alice previously stated that Silvana has a conservator, which would disqualify her from representing herself under CCP section 372(a). The court will discuss the matter with the parties at hearing.

[1] The allegations of the Petition are formatted in sections (miniscule letters), subsections (miniscule Roman numerals), and subsubsections (asterisk bullets). For ease of reference, citations to the Petition will use page and line numbers.

[2] Silvana, Alice, and Luis submit no declarations. Portions of their brief are testimonial in nature, written in first person with the author identified as Alice. Alice has not sworn or declared under penalty of perjury to the contents of the brief. This testimonial matter is unstructured and unnumbered paragraphs. For ease of reference, citations will refer to this matter as “Aparicio Decl.” and page and line numbers.