Smith v. Equitable Life & Casualty Insurance Company

• Court: District Court, N.D. California
• Decided: March 15, 2024
• Docket: 3:22-cv-09125
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 PHYLLIS SMITH, Case No. 22-cv-09125-JD

9 Plaintiff, ORDER RE GUARDIAN AD LITEM v. 10

11 EQUITABLE LIFE & CASUALTY INSURANCE COMPANY, et al., 12 Defendants.

13 14 Plaintiff Phyllis Smith filed an unopposed motion to appoint her son, David Smith, as 15 guardian ad litem for purposes of this lawsuit. Dkt. No. 32. 16 The Court will appoint a guardian because the record indicates that Phyllis Smith is not 17 competent to proceed independently. See Fed. R. Civ. P. 17(c)(2). Her capacity to sue is 18 determined by California law. See Fed. R. Civ. P. 17(b)(1); Dkt. No. 1 ¶ 4. “In California, a party 19 is incompetent if [s]he lacks the capacity to understand the nature or consequences of the 20 proceeding, or is unable to assist counsel in the preparation of the case.” Robbins v. Mscripts, 21 LLC, No. 23-cv-01381-LB, 2023 WL 4205773, at *2 (N.D. Cal. June 27, 2023) (citations 22 omitted). Phyllis Smith’s attorney states that she “has dementia and is not competent to represent 23 herself in this action.” Dkt. No. 32 at 1. This is consistent with the complaint allegation that 24 plaintiff “is 91 and suffers from cognitive deficits,” Dkt. No. 1 ¶ 4, and more recent filings 25 confirming the dementia diagnosis. See Dkt. Nos. 24 at 1; 28 at 1. David Smith has made health 26 care decisions on his mother’s behalf for more than five years. Dkt. No. 32-1 ¶ 4. 27 There is also a presumption in favor of David Smith’s appointment because Phyllis Smith 1 App. 4th 1139, 1152 (1994), as modified; Lee v. Retail Store Emp. Bldg. Corp., No. 15-cv-04768- 2 || LHK, 2017 WL 565710, at *4 (N.D. Cal. Feb. 13, 2017). The power of attorney properly conveys 3 “the intent of the principal that the authority conferred shall be exercisable notwithstanding the 4 || principal’s subsequent incapacity.” Cal. Prob. Code § 4124. See Dkt. No. 34-1! (POA) § 2.02 5 (“Durability” provision). David Smith avers that he has “no conflicts” with Phyllis Smith and that 6 || he will “act in good faith to protect her interests.” Dkt. No. 32-1 9/7. Nothing in the record 7 indicates otherwise. 8 Consequently, David Smith is appointed Phyllis Smith’s guardian ad litem for purposes of 9 || this lawsuit. 10 IT IS SO ORDERED. 11 Dated: March 15, 2024 a 12

JAMES ATO 14 United tates District Judge 15 16

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Z 18 19 20 21 22 23 24 25 26 27 28 ' The power of attorney, which contains personally identifying information, is sealed in accordance with Federal Rule 5.2.