Judge: Theresa M. Traber, Case: 23STCV31917, Date: 2024-06-07 Tentative Ruling

Case Number: 23STCV31917    Hearing Date: June 7, 2024    Dept: 47

The Court is in receipt of Plaintiff Binns’s Motion for Appointment of Counsel which was filed on April 16, 2024. As no proof of service of the summons and complaint has been filed, Defendants are not yet before the Court to respond to this motion.

Turning to the merits of the motion, although the Court appears to have discretionary authority to appoint counsel to represent a party so as to preserve that party’s fundamental right of access to the courts, that authority is not unlimited. (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 469.) Smith, on which Plaintiff relies, states that a court ruling on such a request must evaluate the circumstances of the request and determine whether “exceptional circumstances” exist that justify such an extreme remedy. (Id. at 469.) Relevant considerations for that determination include“(1) the type and complexity of the case; (2) whether the [party] is capable of adequately presenting his case;  (3) whether the [party] is in a position to investigate adequately the case; ... [¶] (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination and (5) whether appointed counsel would aid in the efficient and equitable disposition of the case.” (Id.)  Plaintiff has offered no evidence, whether by documents supported by authentication (see Evid. Code section 1400) or affidavits under penalty of perjury (Code Civ. Proc. section 2015.5), to support that finding.

That said, Code of Civil Procedure sections 372 through 376 set forth procedures for appointment of a Guardian ad Litem to represent the interests of a party who is a minor, who is under a conservatorship, or, as relevant here, lacks legal capacity to make decisions for themselves. (Code Civ. Proc. section 372.)  A party may request appointment of a Guardian ad Litem on an ex parte basis through mandatory Judicial Council Form CIV-010. A Guardian ad Litem must be represented by counsel and cannot appear in propria persona except in select circumstances. (See Code Civ. Proc. section 374.) However, any relative or friend of a person who lacks legal competence to make decisions may apply for appointment of a guardian ad litem. (Code Civ. Proc. section 373 (c).) The statutes impose no limitations on who may serve as Guardian ad Litem so long as that person discloses their relationship with the parties, if any, and any known actual or potential conflicts of interest. (Code Civ. Proc. section 372(d).) These procedures may be of some assistance in bringing all Plaintiffs before the Court so that the Defendants can be served with process and this action can proceed.

Plaintiff’s Motion for Appointment of Counsel is therefore DENIED WITHOUT PREJUDICE for insufficient evidence to support a finding of exceptional  circumstances warranting the special appointment of counsel.