Judge Lynne M. Hobbs, Case Number: 23STCV01334, Date: 2024-07-11 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV01334, Date: 2024-07-11 Tentative Ruling

Case Number: 23STCV01334 Hearing Date: July 11, 2024 Dept: 61

EMELY JANETH MARTINEZ REGALO vs HAY & ASSOCIATES, AN ACCOUNTANCY CORPORATION, et al.

TENTATIVE

Defendants Hay & Associates and Andrew Hay’s Motion to Compel Arbitration and Appoint Temporary Guardian Ad Litem is CONTINUED. An OSC re: why a guardian ad litem should not be appointed for Plaintiff is set for September 3, 2024, at 9:00 am. Defendants’ motion to appoint such a guardian is continued to that date, and their motion to compel arbitration shall be scheduled thereafter.

Defendants to provide notice.

DISCUSSION

I. MOTION TO APPOINT GUARDIAN AD LITEM

Defendants Hay & Associates and Andrew Hay (Defendant) bring a motion to compel arbitration pursuant to an agreement executed by Plaintiff Emely Janeth Martin Regalo (Plaintiff) on December 21, 2020. (Motion Exh. A.) Defendants also move for the appointment of a guardian ad litem for Plaintiff in this matter, based on judicial finding that she was incompetent to stand trial in a criminal matter filed against her in April 2023. (Motion Exh. C.)

Because Defendants’ arguments concerning Plaintiff’s lack of capacity to prosecute this action necessarily implicates her capacity to assist in the defense of their motion to compel arbitration, it is proper to consider their request for an appointed guardian ad litem prior to their request to compel arbitration.

When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.

(Code Civ. Proc. § 372, subd. (a).) The application for appointment of a guardian ad litem is here made on the basis that Plaintiff “lacks legal capacity to make decisions” (Ibid.), and is brought by Defendants as “any other party to the proceeding.” (Code Civ. Proc. § 373, subd. (c).)

The court in the case In re Jessica G. (2001) 93 Cal.App.4th 1180, discussed the import of the appointment of a guardian ad litem in under Code of Civil Procedure § 372, in the context of proceedings for the termination of parental rights:

The introduction of a guardian ad litem into the case is no small matter. The effect of the appointment is to remove control over the litigation from the parent, whose vital rights are at issue, and transfer it to the guardian. Consequently, the appointment must be approached with care and appreciation of its very significant legal effect. The court is being asked to dramatically change the parent's role in the proceeding by transferring the direction and control of the litigation from the parent to the guardian ad litem. guardian ad litem has broad powers: the power to control the lawsuit, including controlling procedural steps necessary to the conduct of the litigation ... and controlling trial tactics. Because “the decisions made can affect the outcome of the dependency proceeding, with a corresponding effect on the parent ... the parent has a direct and substantial interest in whether a guardian ad litem is appointed.

(In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186–1187, internal quotation marks and citations omitted.) Although the present matter is an employment discrimination lawsuit, the appointment of a guardian ad litem for Plaintiff similarly implicates their right to control the litigation.

The statute defines “a person who lacks legal capacity to make decisions” to include “all of the following:

(A) A person who lacks capacity to understand the nature or consequences of the action or proceeding.

(B) A person who lacks capacity to assist the person's attorney in the preparation of the case.

(Code Civ. Proc. § 372, subd. (a)(4).)

Defendants here note the existence of a criminal case filed against Plaintiff on April 19, 2023, some three months after Plaintiff filed the present action in this court. (Motion Exh. C.)1 According to the docket presented by Defendants, on July 21, 2023, Plaintiff’s counsel declared a doubt as to the mental competence of Plaintiff, and the court appointed a county approved psychiatrist under Evidence Code § 730 to examine Plaintiff and determine her competency under Penal Code § 1368. (Ibid.) On August 4, 2023, the court examined the report and found “that the defendant is not presently mentally competent to stand trial within the meaning of Penal Code § 1368, in that they are unable to understand the nature of the proceedings taken against them and is unable to assist counsel in the conduct of a defense in a rational manner.” (Ibid.) The counts against Plaintiff were accordingly dismissed. (Ibid.)

Defendants have presented a judicial finding of Plaintiff’s incompetency to stand trial, which occurred eleven months ago, while the present case was pending. While the court is not privy to the report that was prepared and examined in that case, the findings of that criminal case are publicly reviewable, as is the dismissal of the case against Plaintiff based on those findings, entered roughly two weeks before Defendants filed their answer in this action on August 18, 2023.

Plaintiff in opposition offers unpersuasive arguments as to the inapplicability of Penal Code standards of mental competency and their applicability in this case. (Opposition at pp. 12–13.) The first argument — that the findings were made in a criminal case, and this is a civil case — is unavailing, as the applicable standards are the same. Code of Civil Procedure § 372 defines one lacking mental capacity as one “who lacks capacity to understand the nature or consequences of the action or proceeding” or “who lacks capacity to assist the person’s attorney in the preparation of the case.” (Code Civ. Proc. § 372, subd. (a)(4)(A), (B).) The criminal court found that Plaintiff was “unable to understand the nature of the proceedings taken against them and is unable to assist counsel in the conduct of a defense in a rational manner.” (Motion Exh. C.) Other cases have expressly applied the same standards to determine competency in civil proceedings, based on standards announced in the same Penal Code provisions applied by the criminal court. (See Jessica G., supra, 93 Cal.App.4th at p. 1186 [stating that “either of these laws [Probate Code § 1801 and Penal Code § 1367] may apply to dependency proceedings”].) And while Plaintiff argues that no competency determination has yet been made in this case, the criminal court’s competency determination was made in August 2023, some seven months after Plaintiff filed her Complaint in this matter. Plaintiff does not explain why she lacked capacity to defend a criminal action, but simultaneously possessed (and now possesses) capacity to prosecute a civil matter pending at the same time.

Plaintiff shall be given an opportunity to explain what has changed in the intervening months. Due process requires that, on a guardian ad litem determination, either that the party consent to such an appointment or that there be “notice and hearing” on the same. (Jessica G., supra, 93 Cal.App.4th at p. 1187.) The court in Jessica G. explained the nature of the inquiry, once more in the context of parental termination proceedings:

What is required is that the court or counsel explain to the parent/client the purpose of the guardian ad litem appointment, the authority the guardian will have (and which the parent will not have) in the litigation, and why the attorney believes the appointment should be made. Persons other than court attaches, the parent and the parent's attorney may be excluded from the courtroom during the hearing. At the hearing, the parent should be given the opportunity to respond—to present the best case and provide the court with the most accurate picture of the circumstances so that it can make an informed decision. This may involve testimony on the limited issue of competency. At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights. The court's decision on this issue should be stated on the record.

(Id. at p. 1188, internal quotation marks and citations omitted.)

An OSC re: why a guardian ad litem should not be appointed for Plaintiff is therefore set for September 3, 2024, at 9:00 am. Defendant’s motion to appoint such a guardian is continued to that date, and the motion to compel arbitration shall be scheduled thereafter.