Judge Lee S. Arian, Case Number: 22STCV30611, Date: 2023-12-20 Tentative Ruling

On September 19, 2022, Plaintiff Kylee S. Dupree filed this action against Defendants Star Bike Rentals, Johnathan Singh, Isaih Caldwell, Jr., D’Aire Jones, and Does 1 through 50, asserting causes of action for (1) negligence and (2) premises liability.

On August 14, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against the defendants, asserting causes of action for (1) assault, (2) battery, (3) intentional infliction of emotional distress, (4) negligence, and (5) premises liability.

The FAC alleges the following: Plaintiff is the surviving daughter of Ky Thomas (“Decedent”). (FAC, ¶¶ 1, 2.) On December 1, 2020, Decedent was returning a rental at Defendant Star Bike Rentals, and an argument ensued regarding the return of her ID (FAC, ¶ 1.) Thereafter, Star Bike Rentals, via its employees and/or agents Defendant Nadav Vaiman and Does 3 and 4, contacted the shop’s other agents and/or employees (Defendants Jonathan Singh, Isaih Caldwell, Jr., and D’Aire Jones) to get involved in the argument with Decedent, resulting in Defendant Isaih Caldwell, Jr. shooting and killing the Decedent. (FAC, ¶ 1.)

King Nobles is the son of the Decedent and is named in this lawsuit as a nominal defendant. (FAC, ¶ 4.)

On September 18, 2023, Plaintiff amended the FAC to change the name King Nobles to “nominal defendant King Nobles, a minor individual, by and through his legal representative and father Stephen Nobles.”

On November 15, 2023, Plaintiff filed the instant motion, seeking an order appointing Stephen Nobles as the guardian ad litem for King Nobles, a minor, or in the alternative, a Court-appointed guardian ad litem.

“All persons may join in one action as plaintiffs if: ¶ (1) They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action ….” (Code Civ. Proc., § 378, subd. (a).)

“If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint ….” (Code Civ. Proc., § 382 [emphasis added].)

“A party who is joined in a wrongful death action as a defendant under section 382 is only nominally a defendant. In reality, he is a plaintiff [citations]. It is improper to enter a default against a nominal defendant joined under section 382; a failure to join a known heir under that section may give rise to an action for fraud against the one who conceals the existence of the heir; and an heir joined under section 382 who does not participate in the trial may nonetheless have standing to move for a new trial [citations]. A jury is properly instructed upon the issue of damages suffered by a party joined as a defendant under section 382 even though that ‘defendant’ does not participate in the trial [citation]. Where a plaintiff and defendants who are joined under section 382 participate in a lump sum settlement, the court has jurisdiction to apportion the settlement proceeds [citation].” (Estate of Kuebler v. Superior Court (1978) 81 Cal.App.3d 500, 503–504 (“Estate of Kuebler”) [emphasis added]; see also Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 219 (“Romero”) [“The naming of an heir as a nominal defendant manifestly puts the defendant on notice of the heir’s existence regardless whether the heir has been joined by service of process”].)

“The statutes regarding appointment of guardians ad litem were enacted to protect minors and insane and incompetent persons—not to preclude them from their legal rights.” (Briggs v. Briggs (1958) 160 Cal.App.2d 312, 319.)

“When a guardian ad litem is appointed, he or she shall be appointed as follows:

(a) If the minor is the plaintiff the appointment must be made before the summons is issued, upon the application of the minor, if the minor is 14 years of age or older, or, if under that age, upon the application of a relative or friend of the minor.

(b) If the minor is the defendant, upon the application of the minor, if the minor is 14 years of age or older, and the minor applies within 10 days after the service of the summons, or, if under that age or if the minor neglects to apply, then upon the application of a relative or friend of the minor, or of any other party to the action, or by the court on its own motion.”

“‘A trial court has discretion to accept or deny an application for appointment of a guardian ad litem [citation]. In the absence of a conflict of interest, however, the appointment is usually made on application only and involves little exercise of discretion. (See Code Civ. Proc., §§ 372, 373.)’ [Citation.] An order appointing a guardian ad litem or revoking an appointment is not appealable.” (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149 [emphasis added].)

“Before a court appoints a guardian ad litem …, a proposed guardian ad litem shall disclose both of the following to the court and all parties to the action or proceeding: ¶ (1) Any known actual or potential conflicts of interest that would or might arise from the appointment. ¶ (2) Any familial or affiliate relationship the proposed guardian ad litem has with any of the parties.” (Code Civ. Proc., § 372, subd. (d) [emphasis added].) “If a guardian ad litem becomes aware that a potential conflict of interest has become an actual conflict of interest or that a new potential or actual conflict of interest exists, the guardian ad litem shall promptly disclose the conflict of interest to the court.” (Code Civ. Proc., § 372, subd. (e).)

Plaintiff, a minor through her guardian ad litem Cortlyn Bridges, moves for the appointment of a guardian ad litem for nominal defendant King Nobles, a minor born November 6, 2020 (currently 3 years old). (Motion, p. 3:11-13.)

Plaintiff’s counsel attests to the following facts in support of the motion. “This a wrongful death action, in which Decedent was survived by her two children, Plaintiff Kylee Thomas and King Nobles, who is a minor and has been named in the action as a nominal defendant.” (Motion, declaration of Amir S. Salehi (“Salehi Decl.”), ¶ 2.) Counsel “spoke with Stephen Nobles who is King Nobles’ father and he stated that he is to make all decisions regarding legal issues pertaining to the incident, this lawsuit or wrongful death action as it pertains to King Nobles. [Counsel also] spoke with Bridget Wiley, King Dupree’s grandmother and Stephen Nobles’ mother. Plaintiff is informed Ms. Wiley is living with and taking care of King Nobles. … Ms. Wiley … also stated that all legal decisions regarding this action and wrongful death case as it pertains to King Nobles is to be made and directed to Stephen Nobles. However, Stephen Nobles has declined to sign the consent section of Plaintiff Application and Order for Appointment of Guardian ad Liten [sic]. As such, Per CCP §§ 372 and 373, Plaintiff is requesting an Order appointing Stephen Nobles as Guardian Ad Litem for minor King Nobles or in the alternative a Court Appointed Guardian Ad Litem so the case can proceed.” (Salehi Decl., ¶ 2.)

Plaintiff implies that this action cannot proceed without appointing a guardian ad litem for King Nobles. However, Plaintiff has not cited, and the Court has not found through its own research, any authority supporting that argument.

Instead, case law suggests a nominal defendant has no control over a lawsuit. (See Romero, supra, 156 Cal.App.4th at p. 218 [“Merely naming a person as a nominal defendant under [Code of Civil Procedure] section 382 is not the equivalent of joining the person in the lawsuit. A party is not properly joined unless served with a summons and complaint”]; see also Atchison, T. & S.F. Ry. Co. v. Phillips (9th Cir. 1910) 176 F. 663, 668–669 [discussing California law (specifically, Section 377 of the California Code of Civil Procedure, which was repealed but restated in other current sections) and stating: “it is urged that the law of California … requires that all the heirs be made parties to a suit brought by any of the heirs to recover damages for the wrongful death of an ancestor. We think, though, that notwithstanding the requirement of a statute that suit shall be brought in the name of certain persons or that certain persons shall be parties thereto, it does not necessarily make such persons real parties in interest in the controversy. Even though the statute make it obligatory that certain parties shall be before the court— they may be indispensable, in that no right of action can be prosecuted without them— yet they may, at the same time, be merely nominal or formal parties. They must be brought into the suit, yet they have no interest in or control over it” (emphasis added)].)

To the extent that nonparty Stephen Nobles wishes to have a say in this lawsuit as King Nobles’s guardian ad litem, then the nonparty must go through the proper procedures (e.g., allow King Nobles to be joined as a plaintiff and file the Application and Order for Appointment of Guardian Ad Litem-Civil (Judicial Council form CIV-010) before having any say or control on behalf of King Nobles in this lawsuit.

Simply put, according to case law, this lawsuit can go forward without King Nobles’s participation as a party.

Although Plaintiff argues that the Court on its own motion can appoint guardian ad litem for King Nobles, the Court does not find it necessary based on its findings above.

Further, a proposed guardian ad litem must disclose any conflict of interest to the Court. Here, that requirement has not been met. Indeed, Stephen Nobles has refused to be appointed as King Nobles’s guardian ad litem, and there is no other proposed guardian ad litem before the Court.

Lastly, the proper procedure for seeking the appointment of a guardian ad litem is to file the application mentioned above (CIV-010). Here, Plaintiff did not file that application.

The Motion for Order Appointing Stephen Nobles as Guardian Ad Litem For Nominal Defendant King Nobles is DENIED, without prejudice.

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’s 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. Lee S. Arian

Judge of the Superior Court