The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
ORDER DENYING EX PARTE MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM (DOC. #29)
ORDER DENYING EX PARTE MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM (DOC. #20)
On June 7, 2011, proposed Guardian Ad Litem Serena BlachVillnow filed an Ex Parte Motion For Appointment as Guardian Ad Litem in case number 11-0797 (hereafter "Guardian Life case"). On June 14, 2011, proposed Guardian Ad Litem Serena Blach-Villnow filed an Ex Parte Motion For Appointment as Guardian Ad Litem in case number 11-0871 (hereafter "Pruco case"). In both Motions, Ms. BlachVillnow, Plaintiff's sister, requests that she be appointed as the Guardian Ad Litem (hereafter "GAL") for Plaintiff Pamela Stonebreaker's and the deceased's minor children, Kristin Stonebreaker, Kelli Stonebreaker and Ryan Stonebreaker (hereafter "minor children").*fn1
Defendant Guardian Life Insurance Company of America (hereafter "Guardian Life"), does not oppose the appointment of a GAL for Plaintiff's minor children, but objects to Ms. BlachVillnow's appointment as GAL for them, because she appears to be "too close to (Plaintiff) to independently represent the interest of the minor (children) particularly when the interests of the minor (children) may be adverse to (Plaintiff's) interests." Instead, Guardian Life proposes that David Stonebreaker, the deceased's brother, act as the GAL, because he currently serves as the conservator for the grandfather of the minor children. Further, Defendant Western Reserve Life Assurance Company (hereafter "Western Reserve"), has applied to the San Diego Superior Court to have David Stonebreaker appointed as Special Administrator for the estate of the deceased. However, Western Reserve does not oppose the appointment of either Ms. Blach-Villnow or David Stonebreaker as GAL.
The Court having reviewed the papers submitted by counsel, and having met privately with the minor children, HEREBY ORDERS:
Federal Rule of Civil Procedure 17 states in pertinent part:
(b) Capacity to sue or be sued is determined as follows:
(3) ... by the law of the state where the court is located.
(c)(2) A minor... who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem -- or issue another appropriate order -- to protect a minor... who is unrepresented in an action.
California law applies to determine capacity to sue. Pursuant to California law, a minor must be represented by a GAL in court proceedings. Cal. Code of Civ. Pro. §372(a). A court has broad discretion in ruling on an application for appointment of a GAL. Kulya v. City and County of San Francisco, 2007 WL 760776 at *1 (N.D. Cal. 2007), citing Williams v. Superior Court, 147 Cal. App 4th 36, 47 (2007).
The GAL's main focus is the best interest of the minor. The GAL is an officer of the court with the right to control the minor's litigation. When a court chooses a GAL for a civil lawsuit, the most important issue is the protection of the minor's interest in the litigation. Kulya, supra, at *1. Under such circumstances, a parent with a conflict of interest is not entitled to select the GAL or control the tactical or strategic decision made by the GAL and/or the minor child's attorney. Bhatia v. Corrigan, 2007 WL 1455908 at *1 (N.D. Cal. 2007), citing Williams, supra, at 50.
Here, the Court met with the minor children and spoke privately with them. During the meeting, the Court explained to the minor children the purpose of the meeting, the appointment of a GAL for them who has their best interests in mind, and that Ms. BlachVillnow and David Stonebreaker have been proposed as the GAL. Kristin and Kelli Stonebreaker*fn2 candidly discussed with the Court their lives since the death of their father, the deceased, and their views regarding Ms. Blach-Villnow and David Stonebreaker.
Due to the upheaval in Kristin and Kelli's family after the death of their father and the many strangers that have been involved in their lives since his death, they expressed their desire to have someone familiar to them to be appointed as their GAL. They expressed their desire that Ms. Blach-Villnow be appointed as their GAL.
After having reviewed the papers submitted by counsel and the authorities cited therein, and having met with the minor children and discussed the appointment of a GAL for them, the Court finds that neither Ms. Blach-Villnow nor David Stonebreaker would be appropriate to serve as GAL for the minor children. The Court finds that Ms. Blach-Villnow and David Stonebreaker have an actual or potential ...