Judge Ralph C. Hofer, Case 20STCV27305 2023-03-10 Tentative Ruling

Plaintiff Elijah A. Alvillar, an incompetent individual, through his guardian ad litem, alleges that on May 6, 2019, while plaintiff was under the care, custody and control of defendant BHC Alhambra Hospital, Inc., an acute-care psychiatric hospital, defendant breached the applicable standard of care for safe custody of plaintiff when defendant and its agents failed to adequately supervise and protect plaintiff from harm while he was a resident at the Hospital.

Plaintiff alleges that he suffers from a psychiatric disability which required that he be supervised and protected from unsafe situations due to the potential for impulsive acts in which he might engage, but at the time of the subject accident, plaintiff was left unsupervised in the “smoking cage” portion of the residential care facility, which consists of a chain link fencing over the cage acting as a ceiling barrier which rises to over 8 feet in height. Plaintiff alleges that due to defendant’s failure to properly supervise plaintiff, plaintiff climbed on the chain link cage to an unsafe height and fell, immediately shattering his right heel on impact, and causing plaintiff serious injuries and related damages.

The file shows that on November 21, 2021, the court, the Honorable Michael E. Whitaker presiding, sustained a demurrer to the second cause of action of the First Amended Complaint for Dependent Adult Neglect without leave to amend, and also granted a motion to strike a prayer for enhanced remedies without leave to amend. The FAC alleges a cause of action for negligence.

On September 6, 2022, plaintiff filed an Application and Order for Appointment of Guardian ad Litem seeking the appointment as Guardian ad Litem of Allysa Serrano, plaintiff’s cousin and court appointed conservator according to Letters of Conservatorship dated and ordered on June 23, 2022, which letters expire on June 28, 2023. The order appointing Allysa Serrano as Guardian ad Litem was signed and filed as requested on September 6, 2022.

Defendant BHC Alhambra Hospital, Inc. (Defendant or The Hospital) moves the court for an order disqualifying Alyssa Serrano as Guardian ad Litem (GAL) for Elija A. Alvillar, arguing that Serrano is not performing responsibly in her capacity as GAL.

“(a)(1) 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….

(3) The guardian or conservator of the estate or guardian ad litem so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. Money or other property to be paid or delivered pursuant to the order or judgment for the benefit of a minor, person lacking legal capacity to make decisions, or person for whom a conservator has been appointed shall be paid and delivered as provided in Chapter 4 (commencing with Section 3600) of Part 8 of Division 4 of the Probate Code.”

As noted above, on September 6, 2022, plaintiff filed an Application and Order for Appointment of Guardian ad Litem seeking the appointment as GAL of Serrano, plaintiff’s cousin and court appointed conservator according to Letters of Conservatorship dated June 23, 2022. It appears that the GAL was appropriately appointed in this matter to appear for plaintiff.

Defendant argues that the court has broad discretion in ruling on an application to appoint or remove a GAL and can remove a GAL if the GAL is not performing responsibly, on the court’s own motion or at a party’s request. Defendant relies on Williams v. Superior Court (2007) 147 Cal.App.4th 36, 47, in which the court of appeal summarized the proceeding and outcome as follows:

“In this writ proceeding, a father challenges the trial court's appointment of the maternal grandmother as the guardian ad litem for his minor daughters in their wrongful death action to recover for their mother's death in an automobile collision. The father contends the court's appointment of the maternal grandmother violated his fundamental rights to the care, custody and control of his children. We conclude the contention is without merit. Because the father elected to bring an action on behalf of his daughters and had a conflict of interest with his daughters because he also sought his own recovery, the court's selection of a qualified guardian ad litem did not improperly interfere with the father's rights, even if the father would have preferred his own parents to serve in that role.”

Defendant also relies on McClintock v. West (2013) 219 Cal.App.4th 540, 552, in which the court of appeal affirmed a judgment entered after a demurrer was sustained without leave to amend in an action where plaintiff sued his former GAL and her law offices for damages allegedly resulting from the GAL’s alleged misconduct while acting as plaintiff’s GAL during an underlying divorce proceeding. McClintock, at 543.

Defendant appears to apply broadly a comment made in the course of discussion in that case of the reasons for applying quasi-judicial immunity to a GAL with respect to a second separate case challenging the performance of the GAL. The court of appeal set forth the reasons such immunity should apply, essentially concluding such issues should have been raised in the divorce proceeding:

“The countervailing policy present here is the accountability of guardians ad litem, but there are sufficient mechanisms in place to address such concerns. First, immunity is limited to acts within the scope of the guardian's authority. Second, in addition to a guardian ad litem, wards generally have legal counsel as well, as was the case here. Third, as we have noted, guardians 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. Fourth, the trial court's decisions are ultimately subject to review by an appropriate writ or appeal. Ultimately, both the parties and the judicial system are best served by addressing any issues with the guardian ad litem's performance during the initial case, rather than by a subsequent lawsuit collaterally attacking the original judgment.”

Defendant also cites to Estate of Emery (1962) 199 Cal.App.2d 22, in which the court of appeal held that the trial court had appropriately found that there was a conflict between the interests of the GAL and the interests of the incompetent “which could seriously affect” the GAL’s duties, so that an order terminating the authority and capacity as GAL was proper, stating, “The removal of a guardian ad litem is within the sound discretion of the trial court.” Estate of Emery, at 26.

Defendant argues that disqualification is appropriate here because Serrano is not performing responsibly in her role as GAL. Defendant relies on deposition testimony of Serrano, in which defendant argues Serrano demonstrated a complete lack of knowledge regarding the facts and circumstances relating to plaintiff’s injury. Specifically, it is argued that Serrano testified that she “believes” plaintiff was admitted to the Hospital, “believes” his admission was due to plaintiff suffering psychotic episodes but knows no details about the episodes despite living with plaintiff at the time. [See Ex. 4, Serrano Depo., pp. 30-34]. Defendant argues that Serrano testified she is not aware of plaintiff’s medical history in the months leading up to his admission to the Hospital, was not aware of whether a mental status exam was performed upon admission, and also testified that she has never reviewed plaintiff’s medical records. [Ex. 4, Serrano Depo., pp. 35-39].

Defendant argues that Serrano never spoke with any staff members at the Hospital and testified that a photograph produced by the Hospital of the patio area showing the same area as photographs produced by plaintiff in discovery, which was not constructed of chain link, did not depict the location of plaintiff’s fall, and that the fence plaintiff fell from was a chain link fence. [Serrano Depo., pp. 38, 42, 46, 69, 70]. Defendant argues that the deposition testimony indicates that all the information Serrano learned about the fall came from her grandmother and Serrano was unable to provide information regarding plaintiff’s medical condition, outstanding medical bills, or treatment. [Serrano Depo. pp. 58, 68].

This showing does not establish that Serrano is not an appropriate GAL, but that she may not have been an involved percipient witness to the events in question, and it would not appear that a GAL would be required to be personally aware of the details of events. Moreover, the motion appears to overstate the lack of knowledge on the part of the GAL concerning this matter. The deposition testimony appears straightforward and credible, and suggests that the direct facts can be explored from other sources, such as the hospital records and by pursuing discovery directed to the grandmother.

The opposition argues in reply that the standards with respect to the conduct of a GAL include that the GAL not compromise the fundamental rights of the incompetent person without some countervailing and significant benefit, and should be removed if there is a conflict of interest, as in the cases cited in the moving papers.

“A guardian ad litem's role is more than an attorney's but less than a party's. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian's charge in mind. Specifically, the guardian may not compromise fundamental right without some countervailing and significant benefit. Thus, should a guardian ad litem take an action inimical to the legitimate interests of the ward, the court retains the supervisory authority to rescind or modify the action taken.”

It does not appear that not having personal knowledge of facts the GAL did not witness, and conceding as much, or not “performing responsibly” by obtaining indirect knowledge of those facts, is a showing that the GAL engaged in some conduct potentially harmful to plaintiff. The opposition argues that the standard defendant sets forth here, that is, that the GAL have knowledge of the incident to avoid disqualification, is not the proper standard. The opposition also points to portions of the deposition transcript in which, even if the standard involves lack of knowledge, the GAL testified concerning subjects such as the prior mental state of plaintiff, the reasons he was admitted to the Hospital, his course of treatment, the lack of additional falls and medical treatment after the fall, the continued pain complaints of plaintiff, and the reasons the GAL believes there was a chain link fence involved in the incident which she indicates she saw passing through the walkway to plaintiff’s unit during his stay at the Hospital. [See Boris Decl., para. 7, Ex. 1, highlighted portions of Serrano Deposition, pp. 10-12, 22-28, 32, 35, 42, 43,44, 47, 49, 58, 61-67, 69].

The plaintiff has a strong interest in being represented by a person who has been appointed as plaintiff’s conservator pursuant to the necessary judicial review. Here, the GAL is for a person who lacks legal capacity to make decisions and has been appointed by this court. The plaintiffs’ interest should not be challenged by an adversary in litigation because that adversary desires a person with percipient knowledge about the incident to be appointed GAL. However, this choice is not up to defendant because there could be many reasons why the grandmother is not better positioned or prepared to take on the role of GAL for plaintiff.

Certainly, the trial court has authority to control the appointment status of a GAL but the types of conduct which the court would be authorized to question would be matters such as a conflict of interest or handling the litigation in ways which would compromise the position of plaintiff. As noted in the case law cited by both sides, the GAL may not settle an action without the approval of the court. See McClintock, at 549-550; Carachure, at 31 (“Section 372 empowers a guardian ad litem to settle the incapacitated party's claim; however, the settlement is not final or binding until the agreement is approved by the trial court in which the claim was brought.”). Plaintiff here is represented by an attorney, who would also have some professional responsibility to monitor for such circumstances and seek appropriate relief by calling it to the attention of the court should such circumstances arise relating to the ability of the current GAL to continue serving as the GAL.

Defendant argues that Serranos’s lack of information about this matter is not only irresponsible but significantly impedes defendant’s ability to defend itself in connection with this matter. It is not clear how the lack of personal knowledge on the part of the GAL unfairly impedes defendant’s ability to obtain the information from other sources which would be necessary to pursue in any case.

Plaintiff in the opposition requests that the court award plaintiff sanctions pursuant to CCP section 128.5, arguing that there is no legal or statutory basis to bring this motion, and that defendant could simply take the deposition of plaintiff’s grandmother but has chosen not to.

(a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.

(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers or, on the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.”

Although CCP § 128.5, in contrast to CCP § 128.7, does not ordinarily require the provision of a safe harbor, the statute includes a provision evidently intended to prevent sanctions requests which should be brought under §128.7 with the safe harbor from being brought under §128.5 to avoid the safe harbor requirement.

(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party's attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence….

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”

The request for sanctions then, addressed to the making of a written motion which could have been withdrawn, should have been served prior to the hearing on that motion, as it was, but then not filed until 21 days later to permit that motion to be withdrawn. However, the file shows the opposition was both filed and served on January 12, 2023. The 21-day safe harbor was not permitted, and the request for sanctions is denied.

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