Perez v. County of Kern

CourtDistrict Court, E.D. California
DecidedApril 22, 2025
Docket1:25-cv-00358
StatusUnknown

This text of Perez v. County of Kern (Perez v. County of Kern) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. County of Kern, (E.D. Cal. 2025).

Opinion

1 2 3

4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO ANDRES PEREZ, et al., Case No. 1:25-cv-00358-KES-CDB

12 Plaintiffs, ORDER ON PLAINTIFFS’S EX PARTE APPLICATION FOR APPOINTMENT OF 13 v. GUARDIAN AD LITEM

14 COUNTY OF KERN, et al., (Docs. 8, 9)

15 Defendants. 16

17 Background 18 Plaintiff Ashley Sinden (“Plaintiff”), as the natural parent and purported successor in interest of 19 decedent minor Alejandro Andres Perez (“A.P.”), initiated this action with the filing of a complaint on 20 March 25, 2025. (Doc. 1). In the complaint, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 to 21 recover damages for Defendants’ actions and/or failures resulting in the wrongful death of A.P. while 22 in and under Defendants’ care, custody, control, and supervision. (Id. ¶ 3-4). 23 The complaint alleges that A.P. is the deceased minor child of Sinden and that Plaintiff, as the 24 natural mother of A.P. whose parental rights were never terminated, has standing as A.P.’s rightful heir 25 under C.C.P. § 377.60(a) and Probate Code § 6402(b) and § 6450(a) to bring this action. (Id. ¶¶ 1, 4, 26 6). There is no known guardian or conservator on behalf of A.P. to initiate a claim or lawsuit. (Id. ¶ 7). 27 The complaint alleges that Sinden brings claims “by and through her respective guardian ad litem” in 28 both her individual capacity and as A.P.’s successor in interest. (Id. ¶ 1). 1 Pending before the Court is an ex parte application for appointment of guardian ad litem brough 2 by Sinden’s counsel, Robert Ross Powell. (Doc. 8). The application is supported by counsel’s 3 declaration and the declarations of Sinden’s stepfather (Edwin Walton III), and the proposed guardian 4 ad litem (attorney Donnie R. Cox). (Docs. 8-1, 8-2, 8-3). In short, counsel asserts that Sinden lacks the 5 capacity to sue and to understand the nature and consequences of the proceedings given her “mental 6 disability and severe and ongoing drug-abuse issues.” (Doc. 8 at 3). Relevant here, counsel asserts that 7 Sinden “has been unable to sign any means of consenting to a guardian ad litem because she is currently 8 [as of the date of filing] on a 5150 hold at the Kern Medical Center in Bakersfield, California.” (Doc. 8 9 at 3). In a supplement filed April 14, 2025, counsel attests that, based on documents in his possession, 10 it is counsel’s belief that Ashley Sinden is not in a position to adequately care for herself or make 11 informed decisions regarding her own welfare. This situation underscores the urgent need for a Guardian 12 Ad Litem to be appointed on her behalf.” (Doc. 9). 13 Governing Law 14 1. Ex Parte Relief 15 “The expression ‘ex parte motion’ is a term of art. In its pure form it means a request a party 16 makes to the court without any notice to the other side.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 17 883 F. Supp. 488, 490 (C.D. Cal. 1995). “Ex parte relief is generally disfavored when relief may be had 18 through a regularly noticed motion.” Hufnagle v. Rino Int’l Corp., No. CV 10-08695 DDP (VBKx), 19 2012 WL 6553743, at *1 (C.D. Cal. Dec. 14, 2012). Local Rule 144(e) provides in relevant part: “Ex 20 parte applications to shorten time will not be granted except upon affidavit of counsel showing a 21 satisfactory explanation for the need for the issuance of such an order and for the failure of counsel to 22 obtain a stipulation for the issuance of such an order from other counsel or parties in the action.” Thus, 23 courts will consider an ex parte motion where “the moving party’s cause will be irreparably prejudiced 24 if the underlying motion is heard according to regular noticed motion procedures.” Mission Power 25 Eng’g Co., 883 F. Supp. at 492. 26 2. Competency 27 The standard for determining competency is supplied by the law of the plaintiff’s domicile. See 28 Fed. R. Civ. P. 17(b)(1). Under California law, a party is incompetent “if he or she lacks the capacity 1 to understand the nature or consequences of the proceeding, or is unable to assist counsel in the 2 preparation of the case.” Golden Gate Way, LLC v. Stewart, No. C 09–04458 DMR, 2012 WL 4482053, 3 *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 (2001)); see Cal. 4 Civ. Proc. Code § 372 (“When … a person who lacks legal capacity to make decisions … is a party, that 5 person shall appear either by a guardian or conservator of the estate or by a guardian ad litem[.]”). 6 Typically, “a guardian will not be appointed for an adult unless the person gives consent or upon notice 7 and a hearing.” Jurgens v. Dubendorf, No. 2:14-CV-2780-KJM-DAD, 2015 WL 6163464, at *3 (E.D. 8 Cal. Oct. 19, 2015); accord Golden Gate Way, 2012 WL 4482053, *3 (relying on medical records and 9 the Court’s observations of the party at a hearing to conclude he did not have the capacity to participate 10 in the litigation in any meaningful fashion). 11 Under Rule 17(c), a district court must hold a competency hearing “when substantial evidence 12 of incompetence is presented.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); see Ferrelli v. 13 River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003) (explaining that “due process 14 considerations attend an incompetency finding and the subsequent appointment of a guardian ad litem”); 15 Thomas v. Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990) (observing that the appointment of a guardian 16 ad litem implicates due process concerns because it deprives a litigant of the right to control litigation 17 and subjects them to possible stigmatization). The Ninth Circuit has not clearly stated what constitutes 18 “substantial evidence” of incompetence warranting such a hearing. See Hoang Minh Tran v. Gore, No. 19 10-cv-464–GPC (DHB), 2013 WL 1625418, at *3 (S.D. Cal. April 15, 2013). However, the Ninth 20 Circuit has indicated that sworn declarations from the allegedly incompetent litigant, sworn declarations 21 or letters from treating psychiatrists or psychologists, and medical records may be considered in this 22 regard. See Allen, 408 F.3d at 1152–54; see also Hoang Minh Tran, 2013 WL 1625418, at *3. Such 23 evidence must speak to the court’s concern as to whether the person in question is able to meaningfully 24 take part in the proceedings. See AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1042 (E.D. Cal. 25 2015). Under California law, the standard of relevance for purposes of weighing incompetency is 26 viewed broadly and a trial judge must “clearly bring out the facts.” In re Conservatorship of Pamela J., 27 133 Cal. App. 4th 807, 827 (2005). 28 1 “A[n] incompetent person who does not have a duly appointed representative may sue by a next 2 friend or by guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate 3 order—to protect a minor or incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 4 17(c)(2). Within its obligation of assessing competency, a district court has broad discretion to 5 determine the suitability of appointing a guardian ad litem. See United States v. 30.64 Acres of Land, 6 795 F.2d 796, 805 (9th Cir. 1986).

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Perez v. County of Kern, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-county-of-kern-caed-2025.