Judge Michael P. Linfield, Case Number: 23STCV12196, Date: 2023-08-24 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV12196, Date: 2023-08-24 Tentative Ruling

Case Number: 23STCV12196 Hearing Date: August 24, 2023 Dept: 34

SUBJECT: Motion to Remove Kimberly Rocquel Gant as Guardian ad Litem

Moving Party: Defendant Mercy Housing California 56

Resp. Party: Plaintiff Kimberly Rocquel Gant

The Motion is GRANTED. All five of the Ex Parte Orders for Appointment of Guardian ad Litem are VACATED.

BACKGROUND:

On May 30, 2023, Plaintiffs Khali-Malik Bey, Kimberly Rocquel Gant, Paris-Myelle Sims, Aaniyjah-Makeela Mychelle Gant, Kaniyah-Naomi Campbell, Kyon-Zyire Taylor, Laila-Amoor Taylor, and Rajaih-Rezheem Taylor filed their Complaint against Defendant Mercy Housing California 56 on causes of action arising from Plaintiffs’ tenancy with Defendant.

On June 1, 2023, the Court appointed Plaintiff Kimberly Rocquel Gant to be the guardian ad litem for Plaintiffs Aaniyjah-Makeela Mychelle Gant, Kaniyah-Naomi Campbell, Kyon-Zyire Taylor, Laila-Amoor Taylor, and Rajaih-Rezheem Taylor.

On July 26, 2023, Defendant filed its Motion to Remove Kimberly Rocquel Gant as Guardian ad Litem (“Motion”). In support of its Motion, Defendant concurrently filed: (1) Memorandum of Points and Authorities (“Memorandum”); (2) Declaration of Christina M. Forst; (3) Declaration of Michelle L. Younkin; (4) Request for Judicial Notice; and (5) Proposed Order.

On August 9, 2023, Plaintiff Kimberly Rocquel Gant filed her Opposition to the Motion.

On August 17, 2023, Defendant filed its Reply regarding the Motion.

ANALYSIS:

I. Request for Judicial Notice

Defendant requests that the Court take judicial notice of:

(1) The Order dated August 25, 2021 in Los Angeles County Department of Children and Family Services v. T.T., et al., Court of Appeal Case No. B309385, as well as the truth of the results reached in the Order;

(2) The Opinion dated June 24, 2022 in In re P.S., Court of Appeal Case No. B311162, as well as the truth of the results reached in the Opinion;

(3) The alleged reasoning for an alleged action taken in an alleged dependency petition (although no petition has been provided or cited);

(4) The Complaint filed in this matter;

(5) The five Ex Parte Applications filed for the Appointment of a Guardian ad Litem filed in this matter;

(6) The Opinion dated September 20, 2021 in A.H. v. Sacramento County Department Child, Family and Adult Services, Eastern District of California Case No. 221CV00690KJMJDP, as well as the truth of the results reached in the Opinion;

(7) The Opinion dated March 9, 2007 in Kulya v. City and County of San Francisco, Northern District of California Case No. C 06-06539JSW, as well as the truth of the results reached in the Opinion; and

(8) The Opinion dated October 12, 2022 in Olivares v. County of Stanislaus, Eastern District of California Case No. 222CV00753KJMKJN, as well as the truth of the results reached in the Opinion.

The Court GRANTS judicial notice to items one and two. However, “[w]hile courts take judicial notice of public records, they do not take notice of matters stated therein.” (Herrera v. Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375, citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, however, the truthfulness and proper interpretations of the document are disputable.” (StorMedia Inc. v. Super. Ct. (1999) 20 Cal.4th 449, fn. 9, citing Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

The Court DENIES judicial notice to item three. Defendant has not provided any context, information, or documentation for what this item is or why it is judicially noticeable. Further, a “fact” within a document is normally not judicially noticeable.

The Court DENIES as superfluous judicial notice to items four and five. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

The Court DENIES judicial notice to items six, seven, and eight. “A written trial court ruling in another case has no precedential value in this court”. (Budrow v. Dave & Buster’s of Cal., Inc. (2009) 171 Cal.App.4th 875, 885, citations omitted; Bolanos v. Super. Ct. (2008) 169 Cal.App.4th 744, 761; Santa Ana Hosp. Med. Ctr. v. Belshé (1997) 56 Cal.App.4th 819, 831, citation omitted.)

II. Legal Standard

“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)(1).)

“A guardian ad litem is an officer of the court appointing him or her, and is essentially an agent of the court, whose duty it is to protect the rights of a minor. The guardian ad litem has the right to control the litigation on behalf of the minor, subject to the court's approval. The guardian ad litem’s powers include the right to compromise or settle the action, to control the procedural steps incident to the conduct of the litigation, 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. In other words, these cases teach that a guardian ad litem’s role is more than an attorney's but less than a party's, in that the guardian oversees any attorney representing minor's litigation-related interests and may make tactical and even fundamental decisions affecting the litigation, but always with the interest of the minor in mind.” (County of L.A. v. Super. Ct. (2001) 91 Cal.App.4th 1303, 1311, citations omitted.)

“A minor who is a party in a lawsuit must appear by a guardian ad litem appointed by the court in which the action or proceeding is pending. . . . The appointment may be made on an ex parte application. A court has broad discretion in ruling on a guardian ad litem application. In the absence of a conflict of interest, the appointment is usually made on application only and involves little exercise of discretion.” (Williams v. Super. Ct. (2007) 147 Cal.App.4th 36, 46–47 [cleaned up].)

“Thus, when considering the appropriate guardian ad litem for a minor plaintiff in a civil lawsuit, the central issue is the appropriate protection of the minor's legal right to recover damages or other requested relief.” (Williams, supra, at p. 47.)

III. Discussion

A. The Parties’ Arguments

Defendant moves the Court to remove Plaintiff Kimberly Rocquel Gant as the guardian ad litem for the Plaintiffs who are minors. (Memorandum, pp. 10:9–11.)

Defendant argues: (1) that the Court must follow precedent; (2) that the Court must take judicial notice of the alleged “finding” that Plaintiff Kimberly Rocquel Gant abused and failed to protect her children from abuse by Plaintiff Khali-Malik Bey; and (3) that the allegedly “judicially-noticeable facts” create a clear conflict of interest between Plaintiff Kimberly Rocquel Gant and the Plaintiffs who are minors. (Memorandum, pp. 7:22–23, 9:1–2.)

Plaintiff opposes the Motion, arguing: (1) that Defendant does not have standing to challenge the appointment of Plaintiff as guardian ad litem for the Plaintiffs who are minors; (2) that two of the cases Defendant cites do not apply to the facts of this case; (3) that Defendant’s request for judicial notice of facts should be disregarded; and (4) that granting of the Motion would be an abuse of discretion because Defendant has failed to advance any legal basis for Court action. (Opposition, pp. 6:21–22, 7:20–22, 9:9, 10:3–4.)

Defendant reiterates its arguments in its Reply.

B. Standing

1. Legal Standard

“[G]uardians ad litem are appointed by and subject to the supervision of the trial court. The trial court can remove a guardian if he or she is not performing responsibly, either on its own motion or at a party's request.” (McClintock v. West (2013) 219 Cal.App.4th 540, 552.)

“The removal of a guardian ad litem is within the sound discretion of the trial court.” (Estate of Emery (1962) 199 Cal.App.2d 22, 26 [affirming order of the trial court terminating authority and capacity of a guardian ad litem where there was ample evidence in the record that there was a conflict of interest between the interests of the guardian and of the disabled party that could affect the guardianship].)

2. Discussion

The Court of Appeal has clearly indicated that this Court may consider motions for removal of a guardian ad litem. (McClintock, supra, 219 Cal.App.4th at p. 552.) Thus, there does not appear to be a standing issue here.

C. Defendant’s Citations

Plaintiff Kimberly Rocquel Gant argues that two of Defendant’s citations are inapposite. These cases are: (1) Kulya v. City & County of San Francisco (Mar. 9, 2007) U.S. Dist. LEXIS 21932; and (2) Olivares v. County of Stanislaus (October 12, 2022) U.S. Dist. LEXIS 186564.

The Court does not reach the issue of whether these citations are inapposite. These cases (as well as A.H. v. Sacramento County Department of Child, Family and Adult Services [Sept. 20, 2021] U.S. Dist. LEXIS 178981) are not binding authority on the Court, and the Court does not consider them persuasive.

D. Vacatur of the Ex Parte Orders

Based on the authorities cited and arguments made by Defendant, it appears that Defendant is actually arguing for: (1) vacatur of the Ex Parte Orders for Appointment of Guardian ad Litem; or (2) in the alternative, exercise of the Court’s discretion to remove Plaintiff Kimberly Rocquel Gant as guardian ad litem for the Plaintiffs who are minors on the basis of a conflict of interest.

The Court first considers whether vacatur is appropriate here.

“The law is established in California that a valid order made ex parte may be vacated only after a showing of cause for the making of the latter order, that is, that in the making of the original order there was (1) inadvertence, (2) mistake, or (3) fraud.” (Sheldon v. Super. Ct. (1941) 42 Cal.App.2d 406, 408, citations omitted.)

Here, Plaintiff Kimberly Rocquel Gant’s applications to be a guardian ad litem were completed on Judicial Council Form CIV-010. Among other things, that form includes the following item:

“The proposed guardian ad litem is fully competent and qualified to understand and protect the rights of the person he or she will represent and has no interests adverse to the interests of that person. (If there are any issues of competency or qualification or any possible adverse interests, describe and explain why the proposed guardian should nevertheless be appointed):” (Judicial Council Form CIV-010, Item 7.)

On all of her applications, Plaintiff Kimberly Rocquel Gant left Item 7 blank.

Pursuant to Defendant’s Request for Judicial Notice, the Court took judicial notice of the existence of Court of Appeal cases that appear to have involved some or all of the Plaintiffs in this matter. It is important to reiterate that the Court did not take judicial notice of the information contained within the Order dated August 25, 2021 in Case No. B309385 or the Opinion dated June 24, 2022 in Case No. B311162.

It is also important to note the issues implicated in the prior cases. The Court of Appeal cases Defendant provided to the Court about these Plaintiffs involved: (1) the issue of whether the Plaintiffs who are minors were covered by the Indian Child Welfare Act (Case No. B309385); and (2) the issue of whether the trial court erred by authorizing vaccinations for the children (Case No. B311162). Even though the prior cases clearly took place in the context of the involvement by the Los Angeles County Department of Children and Family Services in this family’s affairs, the Court was not provided with an order or judgment regarding abuse, neglect, or removal of a child.

The last thing to note is that this issue is still ripe. Unlike prior cases that dealt with vacatur of ex parte orders long after they were made, this case began on May 30, 2023, and the Ex Parte Orders for Appointment of Guardian ad Litem were issued on June 1, 2023. The hearing on this matter is scheduled for August 24, 2023. Defendant has yet to file a pleading, and trial has not yet been scheduled. Resolution of this issue at this time is appropriate.

At this time, enough evidence has been provided to the Court to demonstrate that Plaintiff Kimberly Rocquel Gant should have completed Item 7 on each Judicial Council Form CIV-010. Her failure to do so is evidence of fraud, which is a sufficient basis for the Court to vacate the Ex Parte Orders for Appointment of Guardian ad Litem. (Sheldon, supra, 42 Cal.App.2d at p. 408.)

The Court GRANTS the Motion. The Court VACATES all five of the Ex Parte Orders for Appointment of Guardian ad Litem.

The Court need not, and does not, reach the question of whether there is in fact a conflict of interest. Because minors are required to have guardians ad litem in civil cases, the Court expects the Parties to be prepared to discuss: (1) who should be the guardian(s) ad litem for the Plaintiffs who are minors; (2) whether the proposed guardian(s) ad litem has/have conflicts of interest; and (3) what that/those conflict(s) of interest are (if any). (Code Civ. Proc., § 372, subd. (a)(1); Williams, supra, 147 Cal.App.4th at p. 46.)

IV. Conclusion

The Motion is GRANTED. All five of the Ex Parte Orders for Appointment of Guardian ad Litem are VACATED.