COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 10, 2010
GEORGIA BEASLEY, PETITIONER,
THE SUPERIOR COURT OF SAN DIEGO COUNTY, RESPONDENT;
(San Diego County Super. Ct. No. 37-2008-00092470-CU- PO-CTL)
The opinion of the court was delivered by: Benke, Acting P. J.
Beasley v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
YMCA OF SAN DIEGO COUNTY,
Real Party in Interest.
Proceedings in mandate after superior court ordered petitioner to submit to a judgment debtor's examination. Jay M. Bloom, Judge. Petition granted.
Georgia Beasley seeks a writ of mandate directing the Superior Court of San Diego County to vacate its April 30, 2010 order requiring Beasley to submit to a judgment debtor's examination relating to her personal and confidential finances. Beasley contends the trial court erred in ruling that she, in her capacity as guardian ad litem, is liable for costs incurred by real party in interest YMCA of San Diego County (YMCA) in its successful defense of an action brought on behalf of Beasley's granddaughter. Beasley further contends that because she is not liable for costs, she cannot be subject to a judgment debtor's examination in her individual capacity. We agree with Beasley.
We thus grant the petition and direct the trial court to vacate its order granting YMCA's application to examine Beasley.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are not in dispute. E.M., age 12, claimed she was sexually assaulted while residing at one of YMCA's facilities.*fn1 On September 24, 2008, Beasley, E.M.'s grandmother and guardian, filed a lawsuit on behalf of E.M., against YMCA, alleging that YMCA's negligence allowed the assault to occur. Shortly thereafter, the San Diego Superior Court appointed Beasley as E.M.'s guardian ad litem. However, the record shows E.M. was unable to testify at her deposition to the details of the alleged assault. As a result, Beasley voluntarily dismissed the lawsuit without prejudice.
YMCA subsequently obtained a costs judgment. The court ordered that YMCA recover from "Plaintiff" the costs of suit in the sum of $12,120.60. On February 24, 2010, YMCA applied for an order requiring Beasley to appear in her individual capacity for a judgment debtor's examination. On March 9, 2010, the trial court granted the application and ordered Beasley to appear for a judgment debtor's examination. Beasley responded by filing an objection to the court's order. On April 30, 2010, Beasley appeared for the examination and again objected to her status as a plaintiff and judgment debtor. The court briefly took the matter under submission and ultimately ruled that Beasley was a "plaintiff" for the purposes of judgment debtor exam.*fn2 The court again ordered Beasley to appear for her examination, but stayed its order to allow Beasley to seek relief in this court.
A. Guardian Ad Litem Is Not Personally Liable For
"When a minor . . . is a party, that person shall appear . . . by a
guardian ad litem appointed by the court in which the action . .
. is pending . . . ." (Code Civ. Proc.,*fn3 §372, subd.(a).) A
guardian ad litem acts as a party's representative, similar to an
agent with limited powers. (In re Marriage of Caballero (1994) 27
Cal.App.4th 1139, 1149.) The guardian ad litem's ultimate purpose is
to protect the rights of the minor. He or she may make tactical and
even fundamental decisions affecting the litigation but always with
the minor's interests in mind. (In re Christina B. (1993) 19
Cal.App.4th 1441, 1453.)
"A guardian ad litem is not a party to the action, but merely the representative of record of a party. . . . There is no change of parties by the appointment of a guardian ad litem. The guardian does not become a party. The infant is the party, and he only appears by the guardian. . . . The guardian . . . is no more a party than the attorney, who appears in an action for one who has attained majority, is a party to the suit in which he enters his appearance.' Accordingly, a judgment may not be rendered for or against a guardian ad litem, but only for or against the party he represents." (Estate of Cochems (1952) 110 Cal.App.2d 27, 29-30, citing Emeric v. Alvarado (1884) 64 Cal. 529, 593.)
Costs may be recovered in an action prosecuted or defended by a personal representative, trustee of an express trust, guardian, conservator, or a person expressly authorized by statute, as in any other action prosecuted or defended in one's own right. However, such costs must be made chargeable only upon the estate, fund, or party represented, unless the court directs the costs to be paid by the representative personally because of his mismanagement or bad faith. (§ 1026.) Where there is no allegation of mismanagement or bad faith on the part of the representative, costs are not chargeable against the representative. (Van Denburgh v. Goodfellow (1941) 19 Cal.2d 217, 226 [Costs awarded in an action by an administrator are chargeable against the estate, and not the administrator personally, where there is no claim of mismanagement or bad faith]; 16 Cal. Jur. 3d (2010) Costs §41.)
YMCA relies upon Hilton K. v. Greenbaum (2006) 144 Cal.App.4th 1406 (Hilton K.), for the proposition that costs may be awarded against a guardian ad litem prosecuting a lawsuit on behalf of a minor child. In Hilton K., a minor claimed he was molested by one of his teachers. The minor's parents filed a lawsuit on their own behalf against the teacher and school officials for the molestation of their minor son. The father also filed a separate action as guardian ad litem of his son. (Id. at pp. 1408-1410.) The court granted summary judgment against the plaintiffs, in favor of the teacher and school officials, in both actions. The Second District Court of Appeal affirmed the judgment, for reasons irrelevant to this petition. The court then ordered the defendants to recover their costs incurred on appeal jointly and severally from the parents, individually and as the guardians ad litem of the minor. (Id. at p. 1414.)
YMCA contends that although the court in Hilton K. did not explain its reasoning, implicit in the court's holding is the principle that the prevailing party may recover costs from the guardian ad litem who files a meritless lawsuit on behalf of a minor. We disagree.
Cases are not authority for those issues not considered or ruled upon. (Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1623-1624 [case which awarded increased compensation to personal injury victim under Labor Code section 4553 but did not specifically consider the type of compensation which provided the basis for its award, is not authority for the meaning of "compensation" within section 4553].) Similarly, here, although the court in Hilton K. did allow the defendants to recover costs on appeal from plaintiffs, the court did not specifically address the propriety of a cost award against a guardian ad litem.
Importantly, Hilton K. is distinguishable because the parents did not participate solely as guardians ad litem. The parents filed a separate lawsuit and subsequently appealed that judgment in their own right. The court also awarded costs incurred on appeal, where the two cases had been consolidated. Because the two lawsuits were consolidated into one appeal, the parents had a direct and personal interest in the disposition. The award allowed recovery of costs jointly and severally from the parents, individually and as guardians ad litem.
By contrast, here, Beasley only prosecuted the case in her representative capacity. Beasley had no personal stake in the lawsuit; rather her ultimate purpose was to protect the interests of her minor granddaughter. Given these circumstances, Hilton K. does not persuade us that costs may be properly awarded against Beasley personally when she prosecuted the case only as a guardian ad litem.
Where representatives have been held personally liable for actions taken in their representative capacity, the representative has been shown to be personally at fault. (See Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877-878, citing Cal. Law Revision Com. com., 54A West's Ann. Prob.Code (1991 ed.) foll. §§ 18001 & 18002, p. 237.) YMCA has made no such showing. Beasley acted as guardian ad litem, solely as a representative, and not for her own benefit or advantage. She filed a lawsuit to protect the interests of a minor child who allegedly had been sexually assaulted. By so doing, she did not act without authority or exceed her authority as guardian ad litem. Under these circumstances, where there have been no allegations of mismanagement or bad faith, Beasley cannot be held personally liable on YMCA's judgment for costs.
B. Judgment Debtor Examination
Once a judgment is obtained, "[t]he judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment." (Code Civ. Proc., §708.110, subd. (a).) A judgment creditor is the person or entity in whose favor the judgment is rendered. (Code Civ. Proc., §680.240.) A judgment debtor, on the other hand, is the person or entity against whom the judgment is rendered. (Code Civ. Proc., § 680.250.) Judgment creditors are permitted, through such proceedings, to examine the judgment debtor, or third parties who have property of or are indebted to the judgment debtor, in order to discover property and apply it toward the satisfaction of a money judgment. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 547.) However, a third party may only be examined when the judgment creditor has shown that the third party "has possession or control of property in which the judgment debtor has an interest or [the third party] is indebted to the judgment debtor in an amount exceeding two hundred and fifty dollars ($250)." (Code Civ. Proc., §708.120.)
Here, Beasley may not be subjected to a judgment debtor's examination in her individual capacity. She is not a judgment debtor because, as we have found, a judgment of costs may not be rendered against a guardian ad litem, without a showing of personal fault. There has been no such showing here. There has also been no showing that Beasley is indebted to E.M., the judgment debtor, or that Beasley has possession or control of property in which E.M. has an interest. (See Code Civ. Proc., §708.120.) Therefore, the trial court erred in granting YMCA's application to examine Beasley.
Let a peremptory writ issue directing the superior court to vacate its April 30, 2010 order granting YMCA's application to examine Beasley and enter a new order denying the application. The stay order issued May 13, 2010 is vacated. Beasley is to recover her costs on this petition.