Judge Kerry Bensinger, Case BC686543 2023-03-27 Tentative Ruling

On December 11, 2017, Plaintiffs Elizabeth Sanchez, Natividad Sanchez, and Armani Gonzalez, a minor, (collectively, “Plaintiffs”) filed this action against Defendant Derek Aguirre (“Defendant”) for injuries arising from a motor vehicle accident caused by Defendant’s alleged negligence.

Defendant now moves for an order and injunction restraining Plaintiff Elizabeth Sanchez from engaging in the unauthorized practice of law and representing other parties in this action.

“A court has inherent equity, supervisory and administrative powers, as well as inherent power to control litigation and conserve judicial resources. [Citation.] Courts can conduct hearings and formulate rules of procedure where justice so demands.” (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284–285.) This includes the power to “preserve and enforce order in its immediate presence,” “control in furtherance of justice, the conduct of … persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto,” and “amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128, subd. (a)(1), (5), (8).)

“A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the interim harm to that party if an injunction is denied is greater than the [interim] harm the [opposing party] is likely to suffer if the ... injunction is issued. [Citation.] These two showings operate on a sliding scale: The more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. [Citation.]” (Integrated Dynamic Sols., Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 (Integrated Dynamic), citations and quotations omitted; Code Civ. Proc., § 527, subd. (a).)

“Although preliminary injunctions are generally designed to preserve the status quo pending a determination on the merits of the action, [citation], they are not so limited. A court also has the power to issue a preliminary injunction that mandates an affirmative act that changes the status quo [citation], but should do so only in those extreme cases where the right thereto is clearly established. [Citation.]” (Integrated Dynamic, supra, 6 Cal.App.5th at pp. 1183-1184.)

The prohibition against unauthorized practice of law is within the state’s police power and is designed to assure the competency of those performing these services. (Howard v. Superior Court (1975) 52 Cal.App.3d 722, 726.) “While any person may represent himself, and his own interests, at law and in legal proceedings: No person shall practice law (for another) in this State unless he [or she] is an active member of the state bar.” (Abar v. Rogers (1981) 124 Cal.App.3d 862, 865, citing Bus. & Prof. Code, § 6125.) Further, “neither the common law nor guardianship statutes sanction an exception to the State Bar Act prohibition against the unauthorized practice of law in favor of guardians acting for their wards.” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 968.) A court may properly enjoin a party or other person from engaging in the unauthorized practice of law. (Abar, supra, 124 Cal.App.3d at p. 865.)

Defendant contends that Plaintiff Elizabeth Sanchez (hereinafter, “Ms. Sanchez”) has engaged in the unauthorized practice of law. In support, Defendant offers the following reasons in support of its contention: On January 4, 2018, Ms. Sanchez was appointed as guardian ad litem for plaintiff and minor, Armani Gonzalez. Plaintiffs’ attorneys were granted leave to withdraw as counsel on December 20, 2019. To date, Plaintiffs have not retained substitute counsel. In that time, Ms. Sanchez has responded to discovery on behalf of Armani Gonzalez (Kwan Decl., Ex. D), appeared at hearing on his behalf (Motion, 3:14), and has been admonished by this Court for unlawfully representing Armani Gonzalez (see 10/7/22 Minute Order). Defendant further contends that Ms. Sanchez drafts pleadings and other documents on behalf of co-plaintiff Natividad Sanchez as Natividad “has cosigned numerous pleadings and application [sic] filed with court” despite not reading or writing in English.” (Kwan Decl., ¶ 8.)

The evidence shows Ms. Sanchez has represented co-plaintiffs Armani Gonzalez and Natividad Sanchez. “While any person may represent himself, and his own interests, at law and in legal proceedings: No person shall practice law (for another) in this State unless he [or she] is an active member of the state bar.” (Abar, supra, 124 Cal.App.3d at p. 865; Bus. & Prof. Code, § 6125.) While Ms. Sanchez serves as guardian ad litem to Armani Gonzalez that does not except her from this prohibition. “[N]either the common law nor guardianship statutes sanction an exception to the State Bar Act prohibition against the unauthorized practice of law in favor of guardians acting for their wards.” (J.W., supra, 17 Cal.App.4th at p. 968.)

Accordingly, the Court finds that Defendant is entitled to an order enjoining Ms. Sanchez from representing the other plaintiffs in this matter. The Court issues a preliminary injunction pursuant to its inherent power to control litigation as justice requires. (Lucas, supra, 47 Cal.App.4th at pp. 284–285.) As the Court of Appeal observed in Abar, “doubt would be cast upon the validity of any judgment, order, ruling or stipulation in the action” unless Ms. Sanchez is precluded from “practicing” law. (Abar, 124 Cal.App.3d at p. 864.)

Plaintiff Armani Gonzalez, a minor, must have counsel in order to prosecute this action. “Minors lack capacity to sue in their own names. Instead, litigation must be conducted “by a guardian or conservator of the estate or by a guardian ad litem.” (Safai v. Safai (2008) 164 Cal.App.4th 233, 245, citing Code Civ. Proc., § 372, subd. (a).) “A minor may enforce the minor’s rights by civil action or other legal proceedings in the same manner as an adult, except that a guardian must conduct the action or proceeding.” (Fam. Code, § 6601.)

Here, Ms. Sanchez is Armani Gonzalez’s guardian ad litem. However, because Ms. Sanchez may not act in propria persona for Armani Gonzalez in this action, (see J.W., supra, at p. 969), counsel must be retained for the minor, Armani Gonzalez. “The guardian ad litem’s powers include the right to compromise or settle the action [citation], to control the procedural steps incident to the conduct of the litigation [citation], and, with the approval of the court, to make stipulations or concessions that are binding on the minor, provided they are not prejudicial to the latter’s interests.” (County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1311.) A guardian ad litem’s powers, however, do not extend to the practice of law. (See J.W, supra, at p. 965 (rejecting proposition that “once a guardian ad litem is appointed there is no need to hire legal counsel even if the guardian ad litem is not an attorney.”).) Accordingly, Ms. Sanchez, as guardian ad litem to Armani, must engage counsel on Armani’s behalf. Failure to do so will necessitate dismissal of this action.

The Court notes that if this action is dismissed without a judgment on the merits, Armani Gonzalez may bring these claims upon reaching the age of 18. “In California, when a minor is injured, the statute of limitations is tolled during minority and until the minor turns 18. (Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 847, citing Code Civ. Proc., § 352, subd. (a) [“If a person entitled to bring an action ... is, at the time the cause of action accrued ... under the age of majority ..., the time of the disability is not part of the time limited for the commencement of the action”]; Fam. Code, § 6500 [“A minor is an individual who is under 18 years of age. The period of minority is calculated from the first minute of the day on which the individual is born to the same minute of the corresponding day completing the period of minority”].)

Plaintiff Elizabeth Sanchez is enjoined from representing Plaintiffs Armani Gonzalez and Natividad Sanchez in this matter, including but not limited to preparing and signing pleadings on their behalf and appearing on their behalf.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court