1 2 3 4 5 6 7 10 11 GAVIN JONES, et al., Case No.: 18cv2729-W-LL
12 Plaintiffs, ORDER APPOINTING 13 v. REPLACEMENT GUARDIAN AD LITEM 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. [ECF No. 48] 16
17 Currently before the Court is an ex parte application filed by Plaintiffs requesting 18 that the Court appoint Shawn McMillan, Esq. as guardian ad litem for Minor Plaintiffs W.J. 19 and E.J. ECF No. 48. Defendants County of San Diego, David Jennings, and Dennis 20 Leggett (collectively “Defendants”) filed an opposition and requested that Christina 21 Finrow Jones be appointed guardian ad litem, or alternatively, Cheryl Finrow (maternal 22 grandmother) or Casondra Vachon (maternal aunt). ECF No. 51. For the reasons set forth 23 below, the Court DENIES Plaintiffs’ request and instead APPOINTS Cheryl Finrow as 24 guardian ad litem for Minor Plaintiffs W.J. and E.J. 25 I. RELEVANT BACKGROUND 26 On April 24, 2018, Plaintiffs Gavin Jones, E.J. and W.J. filed their original complaint 27 in state court. ECF No. 1-2 at 3–26. 28 1 On May 1, 2018, the state court granted Mr. Jones’ application for appointment of 2 guardian ad litem in the lawsuit on behalf of his children Minor Plaintiffs W.J. and E.J. 3 ECF No. 44-1, Declaration of Jeffrey Miyamoto (“Miyamoto Decl.”), ¶ 17. 4 On November 9, 2018, Plaintiffs filed a First Amended Complaint (“FAC”). 5 ECF No. 1-4 at 5–17. On December 4, 2018, Defendants filed a Notice of Removal of the 6 FAC to the instant District Court. ECF No. 1. In the FAC, Minor Plaintiffs’ mother, 7 Christina Finrow Jones, was named as a nominal Defendant pursuant to California Code 8 of Civil Procedure 376(a) because she would not join the action as a co-plaintiff. 9 ECF No. 1-4 at 6. The FAC further states that “[n]one of the causes of action stated herein 10 are alleged against Defendant Jones.” 11 On May 4, 2020, this Court granted Defendants’ ex parte application to disqualify 12 and remove Mr. Jones as guardian ad litem and ordered Plaintiff’s attorney to submit a 13 petition for appointment of a new guardian ad litem. ECF No. 46. 15 Plaintiff states that Shawn McMillan, Esq. is fully competent and qualified to be 16 guardian ad litem and protect the rights of Minor Plaintiffs. ECF No. 48 at 2. Plaintiff 17 further states that Mr. Millan has “a stellar reputation as an attorney experienced in civil 18 rights litigation, and has obtained outstanding jury verdicts and settlements for families 19 that have been victimized by child welfare services agencies and their agents.” Id. Plaintiff 20 adds that although he is not a family member of Minor Plaintiffs’, he is well suited because 21 their next of kin—their mother—does not consent to the suit. Id. at 3. 22 Defendants argue that Mr. Millan does not have any type of relationship with Minor 23 Plaintiffs and has not been involved with the case in any manner. ECF No. 49 at 4. 24 Defendants state that Christina Finrow Jones (“Christina”) is best suited to serve as 25 guardian ad litem to Minor Plaintiffs because she is their mother and currently their primary 26 caretaker; she is a licensed attorney; and she is intimately familiar with the proceedings in 27 this case. ECF No. 49 at 3–4; see also ECF No. 49-1, Declaration of Christina Finrow Jones 28 (“Finrow Jones Decl.”), ¶ 6–7. Defendants further state that Christina will act in the best 1 interests of the children and will ensure that the settlement that was previously agreed to 2 between the children and Defendants is finalized. ECF No. 49 at 3–4; 3 Finrow Jones Decl. ¶ 9. Alternatively, Defendants state that either Minor Plaintiffs’ 4 maternal grandmother, Cheryl Finrow, or maternal aunt, Casondra Vachon, would be 5 preferable to Mr. Millan because “they have had a close relationship with the children since 6 their birth and continue to have a close relationship with them” and are both willing to 7 serve as guardian ad litem. Id. at 4. 9 Pursuant to Federal Rule of Civil Procedure 17, “[a] minor . . . who does not have a 10 duly appointed representative may sue by a next friend or by a guardian ad litem. The court 11 must appoint a guardian ad litem—or issue another appropriate order—to protect a minor 12 . . . who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). An individual’s capacity 13 to sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b). Here, 14 W.J. and E.J. are domiciled in California. ECF No. 1-4 at 5–6. Under California law, an 15 individual under the age of eighteen is a minor. Cal. Fam. § 6500. A minor may bring suit 16 if a guardian conducts the proceedings, and the court may appoint a guardian ad litem to 17 represent the minor’s interests. Cal. Fam. § 6601; Cal. Civ. Proc. § 372(a). “The role of the 18 guardian ad litem is to protect the incompetent person's rights in the action, to control the 19 litigation, to compromise or settle, to direct the procedural steps, and make stipulations.” 20 Elliott v. Versa CIC, L.P., 328 F.R.D. 554, 556 (S.D. Cal. 2018) (quoting Golin v. Allenby, 21 190 Cal. App. 4th 616, 644 (2010)). 22 When determining whether to appoint a particular guardian ad litem, the court must 23 consider whether the minor and guardian have divergent interests. 24 Cal. Civ. Proc. § 372(b)(1). “When there is a potential conflict between a perceived parental 25 responsibility and an obligation to assist the court in achieving a just and speedy 26 determination of the action, a court has the right to select a guardian ad litem who is not a 27 parent if that guardian would best protect the child's interests.” Williams v. Superior Court, 28 147 Cal. App. 4th 36, 49 (2007) (internal quotation marks and citation omitted); see also 1 Estate of Lopez v. City of San Diego, No. 13cv2240-GPC(MDD), 2014 WL 12675268, at 2 *1 (S.D. Cal. Aug. 25, 2014) (quoting Williams v. Superior Court, 147 Cal. App. 4th at 3 49). “[I]f the parent has an actual or potential conflict of interest with his child, the parent 4 has no right to control or influence the child's litigation.” Williams v. Superior Court, 5 147 Cal. App. 4th at 50. 7 The Court recognizes the “presumption that fit parents act in the best interests of 8 their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000). Christina, as the Minor 9 Plaintiffs’ mother, would act in the best interest of her children, has a close relationship 10 with them, and is knowledgeable about this case. However, due to the original filing of the 11 case in California state court, Christina is named as a nominal Defendant, even though no 12 causes of action are alleged against her. A defendant in an action has an actual conflict of 13 interest with the plaintiff, but the Court finds that Christina—as a nominal Defendant with 14 no causes of action against her—is not a typical defendant in this regard. She has in fact 15 attested that she would recommend that the settlement that was previously agreed to 16 between the parties, which she finds reasonable and fair, be accepted. Finrow Jones Decl. 17 ¶ 9. This would “assist the court in achieving a just and speedy determination of the action. 18 See Williams v. Superior Court, 147 Cal. App. 4th at 49. Nevertheless, the Court finds that 19 Christina’s status as nominal Defendant creates an appearance of potential conflict. 20 The Court finds that of the other potential candidates besides Christina, W.J. and 21 E.J.’s maternal grandmother, Cheryl Finrow, is an appropriate choice as guardian ad litem.
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1 2 3 4 5 6 7 10 11 GAVIN JONES, et al., Case No.: 18cv2729-W-LL
12 Plaintiffs, ORDER APPOINTING 13 v. REPLACEMENT GUARDIAN AD LITEM 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. [ECF No. 48] 16
17 Currently before the Court is an ex parte application filed by Plaintiffs requesting 18 that the Court appoint Shawn McMillan, Esq. as guardian ad litem for Minor Plaintiffs W.J. 19 and E.J. ECF No. 48. Defendants County of San Diego, David Jennings, and Dennis 20 Leggett (collectively “Defendants”) filed an opposition and requested that Christina 21 Finrow Jones be appointed guardian ad litem, or alternatively, Cheryl Finrow (maternal 22 grandmother) or Casondra Vachon (maternal aunt). ECF No. 51. For the reasons set forth 23 below, the Court DENIES Plaintiffs’ request and instead APPOINTS Cheryl Finrow as 24 guardian ad litem for Minor Plaintiffs W.J. and E.J. 25 I. RELEVANT BACKGROUND 26 On April 24, 2018, Plaintiffs Gavin Jones, E.J. and W.J. filed their original complaint 27 in state court. ECF No. 1-2 at 3–26. 28 1 On May 1, 2018, the state court granted Mr. Jones’ application for appointment of 2 guardian ad litem in the lawsuit on behalf of his children Minor Plaintiffs W.J. and E.J. 3 ECF No. 44-1, Declaration of Jeffrey Miyamoto (“Miyamoto Decl.”), ¶ 17. 4 On November 9, 2018, Plaintiffs filed a First Amended Complaint (“FAC”). 5 ECF No. 1-4 at 5–17. On December 4, 2018, Defendants filed a Notice of Removal of the 6 FAC to the instant District Court. ECF No. 1. In the FAC, Minor Plaintiffs’ mother, 7 Christina Finrow Jones, was named as a nominal Defendant pursuant to California Code 8 of Civil Procedure 376(a) because she would not join the action as a co-plaintiff. 9 ECF No. 1-4 at 6. The FAC further states that “[n]one of the causes of action stated herein 10 are alleged against Defendant Jones.” 11 On May 4, 2020, this Court granted Defendants’ ex parte application to disqualify 12 and remove Mr. Jones as guardian ad litem and ordered Plaintiff’s attorney to submit a 13 petition for appointment of a new guardian ad litem. ECF No. 46. 15 Plaintiff states that Shawn McMillan, Esq. is fully competent and qualified to be 16 guardian ad litem and protect the rights of Minor Plaintiffs. ECF No. 48 at 2. Plaintiff 17 further states that Mr. Millan has “a stellar reputation as an attorney experienced in civil 18 rights litigation, and has obtained outstanding jury verdicts and settlements for families 19 that have been victimized by child welfare services agencies and their agents.” Id. Plaintiff 20 adds that although he is not a family member of Minor Plaintiffs’, he is well suited because 21 their next of kin—their mother—does not consent to the suit. Id. at 3. 22 Defendants argue that Mr. Millan does not have any type of relationship with Minor 23 Plaintiffs and has not been involved with the case in any manner. ECF No. 49 at 4. 24 Defendants state that Christina Finrow Jones (“Christina”) is best suited to serve as 25 guardian ad litem to Minor Plaintiffs because she is their mother and currently their primary 26 caretaker; she is a licensed attorney; and she is intimately familiar with the proceedings in 27 this case. ECF No. 49 at 3–4; see also ECF No. 49-1, Declaration of Christina Finrow Jones 28 (“Finrow Jones Decl.”), ¶ 6–7. Defendants further state that Christina will act in the best 1 interests of the children and will ensure that the settlement that was previously agreed to 2 between the children and Defendants is finalized. ECF No. 49 at 3–4; 3 Finrow Jones Decl. ¶ 9. Alternatively, Defendants state that either Minor Plaintiffs’ 4 maternal grandmother, Cheryl Finrow, or maternal aunt, Casondra Vachon, would be 5 preferable to Mr. Millan because “they have had a close relationship with the children since 6 their birth and continue to have a close relationship with them” and are both willing to 7 serve as guardian ad litem. Id. at 4. 9 Pursuant to Federal Rule of Civil Procedure 17, “[a] minor . . . who does not have a 10 duly appointed representative may sue by a next friend or by a guardian ad litem. The court 11 must appoint a guardian ad litem—or issue another appropriate order—to protect a minor 12 . . . who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). An individual’s capacity 13 to sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b). Here, 14 W.J. and E.J. are domiciled in California. ECF No. 1-4 at 5–6. Under California law, an 15 individual under the age of eighteen is a minor. Cal. Fam. § 6500. A minor may bring suit 16 if a guardian conducts the proceedings, and the court may appoint a guardian ad litem to 17 represent the minor’s interests. Cal. Fam. § 6601; Cal. Civ. Proc. § 372(a). “The role of the 18 guardian ad litem is to protect the incompetent person's rights in the action, to control the 19 litigation, to compromise or settle, to direct the procedural steps, and make stipulations.” 20 Elliott v. Versa CIC, L.P., 328 F.R.D. 554, 556 (S.D. Cal. 2018) (quoting Golin v. Allenby, 21 190 Cal. App. 4th 616, 644 (2010)). 22 When determining whether to appoint a particular guardian ad litem, the court must 23 consider whether the minor and guardian have divergent interests. 24 Cal. Civ. Proc. § 372(b)(1). “When there is a potential conflict between a perceived parental 25 responsibility and an obligation to assist the court in achieving a just and speedy 26 determination of the action, a court has the right to select a guardian ad litem who is not a 27 parent if that guardian would best protect the child's interests.” Williams v. Superior Court, 28 147 Cal. App. 4th 36, 49 (2007) (internal quotation marks and citation omitted); see also 1 Estate of Lopez v. City of San Diego, No. 13cv2240-GPC(MDD), 2014 WL 12675268, at 2 *1 (S.D. Cal. Aug. 25, 2014) (quoting Williams v. Superior Court, 147 Cal. App. 4th at 3 49). “[I]f the parent has an actual or potential conflict of interest with his child, the parent 4 has no right to control or influence the child's litigation.” Williams v. Superior Court, 5 147 Cal. App. 4th at 50. 7 The Court recognizes the “presumption that fit parents act in the best interests of 8 their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000). Christina, as the Minor 9 Plaintiffs’ mother, would act in the best interest of her children, has a close relationship 10 with them, and is knowledgeable about this case. However, due to the original filing of the 11 case in California state court, Christina is named as a nominal Defendant, even though no 12 causes of action are alleged against her. A defendant in an action has an actual conflict of 13 interest with the plaintiff, but the Court finds that Christina—as a nominal Defendant with 14 no causes of action against her—is not a typical defendant in this regard. She has in fact 15 attested that she would recommend that the settlement that was previously agreed to 16 between the parties, which she finds reasonable and fair, be accepted. Finrow Jones Decl. 17 ¶ 9. This would “assist the court in achieving a just and speedy determination of the action. 18 See Williams v. Superior Court, 147 Cal. App. 4th at 49. Nevertheless, the Court finds that 19 Christina’s status as nominal Defendant creates an appearance of potential conflict. 20 The Court finds that of the other potential candidates besides Christina, W.J. and 21 E.J.’s maternal grandmother, Cheryl Finrow, is an appropriate choice as guardian ad litem. 22 She has had a close relationship with Minor Plaintiffs since their birth and is willing to 23 serve as guardian ad litem and protect their interests. See Williams v. Superior Court, 147 24 Cal. App. 4th at 49. Although Mr. Millan appears capable, he is a stranger to the children, 25 and on the facts in this case, the Court finds that another capable person who is familiar to 26 the children is preferable. See Hanson v. La Flamme, 761 F. App'x 685, 689 (9th Cir. 2019) 27 / / / 28 / / / 1 || (finding no abuse of discretion by district court that appointed a guardian ad litem who 2 || some significant relationship with, and is truly dedicated to the best interests of” the 3 || minor (citation omitted)). CONCLUSION 5 The Court DENIES Plaintiff's request to appoint Mr. Millan and instead 6 || APPOINTS Chery] Finrow as guardian ad litem for Minor Plaintiffs W.J. and E_J. 8 Dated: June 5, 2020 XO 9 DEF 10 Honorable Linda Lopez United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28