United States District Court, E.D. California
ORDER DENYING COUNTER-DEFENDANT'S PETITION FOR
APPOINTMENT OF GUARDIAN AD LITEM OF RAY GIBSON (DOC. NO.
the court is a petition filed by counter-defendant Judy Slack
seeking appointment as guardian ad litem to her husband,
plaintiff and counter-defendant in this action. (Doc. No.
34.) A hearing on the petition was held on February 21, 2017.
Attorney Anthony Salazar appeared telephonically on behalf of
plaintiff Ray Gibson, and attorney Alicia Gurries appeared
telephonically on behalf of defendants Hagerty Insurance
Agency and Essentia Insurance Company. Oral argument was
heard and the petition was taken under submission. For the
reasons stated below, counter-defendant's petition will
be denied without prejudice.
April 7, 2016, plaintiff Ray Gibson initiated this
action in Stanislaus County Superior Court
against defendants Hagerty Insurance Agency
(“Hagerty”) and Essentia Insurance Company
(“Essentia”), alleging three claims: (i) breach
of an insurance contract; (ii) breach of the implied covenant
of good faith and fair dealing; and (iii) unfair and
deceptive business practices in violation of California
Business and Professions Code § 17200. (Doc. No. 1-1 at
3.) On May 11, 2016, defendants filed a counterclaim against
plaintiff, plaintiff's wife, Judy Slack, and Roes 1-10,
seeking declaratory relief. (Doc. No. 1-7 at 3, ¶¶
1-2.) On the same day, defendants also removed the entire
action from state court on grounds of diversity jurisdiction.
(Doc. No. 1.)
complaint alleges the following. Plaintiff is an eighty-two
year old California resident who owned two motorcycles, a
1909 Winchester and a 1913 Harley-Davidson. (Doc. No. 1-1 at
4, ¶ 8.) On May 15, 2015, defendants Hagerty and
Essentia issued a property insurance policy for
plaintiff's motorcycles, providing a $700, 000 benefit to
plaintiff. (Id. at 4, ¶¶ 6, 8.) Plaintiffs
paid insurance premiums to defendants as required by the
contract. (Id. at 8, ¶ 25.) On September 24,
2015, plaintiff reported to defendants that his two
motorcycles had been stolen from his residence. (Id.
at 4, ¶ 6.) Plaintiff also reported that another man,
Jerry Morrison, was likely responsible for the theft.
(Id. at 5, ¶ 17.) Defendants opened an
investigation into plaintiff's claim. (Id. at
5-6, ¶¶ 18, 20.) Though they initially questioned
Mr. Morrison, defendants ended their investigation in early
October 2015. (Id. at 6, ¶ 20.) Plaintiff
alleges that defendants prematurely concluded the
investigation to avoid paying insurance benefits to
plaintiff. (Id.) Defendants also questioned
plaintiff and his wife about their possible involvement in
the motorcycle theft. (Id.) As part of this
investigation, defendants examined plaintiff and his wife
under oath, collected their financial records, and researched
their personal lives. (Id.) Defendants began to
accuse plaintiff and his wife of planning the motorcycle
theft in order to recover the insurance money. (Id.
at 9-10, ¶¶ 30-32.) Plaintiff alleges that these
accusations were groundless and were only made to pressure
him into dropping the insurance claim. (Id.)
January 13, 2017, counter-defendant Judy Slack submitted the
instant petition for appointment of a guardian ad litem.
(Doc. No. 34.) On January 25, 2017, defendants filed their
opposition. (Doc. No. 35.) Counter-defendant filed her reply
on February 3, 2017. (Doc. No. 38.)
Federal Civil Procedure Rule 17, courts can appoint a
guardian ad litem or issue another appropriate order to
protect a minor or incompetent person.” Fed.R.Civ.P.
17(c)(2); see also Local Rule 202(a). “The
court is under a ‘legal obligation' to consider
whether an incompetent person is adequately protected.”
See Jurgens v. Dubendorf No. 2:14-cv-2780-KJM-DAD,
2015 WL 6163464, at *3 (E.D. Cal. Oct. 19, 2015) (citing
United States v. 30.64 Acres of Land, 795 F.2d 796,
804 (9th Cir. 1986)); see also Davis v. Walker, 745
F.3d 1303, 1310 n.6 (9th Cir. 2014). However, the obligation
of the court to appoint a guardian ad litem pursuant to Rule
17(c) does not arise until after a determination of
incompetence has been made by the court in which the issue
was raised. See, e.g., Forte v. County of Merced,
Nos. 1:11-cv-0318 AWI BAM and 1:11-cv-0718 AWI BAM, 2013 WL
3282957, at *3 (E.D. Cal. June 27, 2013) (citing Ferrelli
v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d
Cir. 2003)) (emphasis omitted); see also Sanchez v.
Grandview School Dist. No. 200, No. CV-10-3118-EFS, 2012
WL 12918718, at *2 (E.D. Wash. Jan. 24, 2012)
(“[W]hether to appoint a guardian ad litem for an
incompetent party who is represented by counsel appears to be
wholly within the Court's discretion.”).
standard for determining competency is supplied by the law of
the plaintiffs domicile. See Fed. R. Civ. P. 17(b)(1).
Under California law, a party is incompetent “if he or
she lacks the capacity to understand the nature or
consequences of the proceeding, or is unable to assist
counsel in the preparation of the case.” Golden
Gate Way, LLC v. Stewart, No. C 09-04458 DMR, 2012 WL
4482053, at *2 (N.D. Cal. Sept. 28, 2012) (citing In re
Jessica G, 93 Cal.App.4th 1180, 1186 (2001)); see
also Cal. Civ. Proc. Code § 372 (“When . . .
a person who lacks legal capacity to make decisions . . . is
a party, that person shall appear either by a guardian or
conservator of the estate or by a guardian ad litem.”).
“In most cases, a guardian will not be appointed for an
adult unless the person gives consent or upon notice and a
hearing.” See Jurgens, 2015 WL 6163464, at *3.
Rule 17(c), a district court must hold a competency hearing
“when substantial evidence of incompetence is
presented.” Allen v. Calderon, 408 F.3d 1150,
1153 (9th Cir. 2005); see also Ferrelli, 323 F.3d at
203 (explaining that “due process considerations attend
an incompetency finding and the subsequent appointment of a
guardian ad litem”); Thomas v. Humfield, 916
F.2d 1032, 1034 (5th Cir. 1990) (observing that the
appointment of a guardian ad litem implicates due process
concerns because it deprives a litigant of the right to
control litigation and subjects him to possible
stigmatization). The Ninth Circuit has not clearly stated
what constitutes “substantial evidence” of
incompetence warranting such a hearing. See Hoang Minh
Tran v. Gore, No. 10cv464-GPC (DHB), 2013 WL 1625418, at
*3 (S.D. Cal. April 15, 2013); see also Shack v.
Knipp, No. 12-CV-794-MMA (BGS), 2012 WL 4111652, at *5
(S.D. Cal. Sept. 17, 2012). However, the Ninth Circuit has
indicated that sworn declarations from the allegedly
incompetent litigant, sworn declarations or letters from
treating psychiatrists or psychologists, and medical records
may be considered in this regard. See Allen, 408
F.3d at 1152-54; see also Hoang Minh Tran, 2013 WL
1625418, at *3. Such evidence must speak to the court's
concern as to whether the person in question is able to
meaningfully take part in the proceedings. See AT&T
Mobility, LLC v. Yeager, 143 F.Supp.3d 1042, 1042 (E.D.
Cal. 2015) (citing In re Christina B., 19
Cal.App.4th 1441, 1450 (1993)); see also United States v.
$18, 474.34 in Bank Account Funds, No. SACV 10-1168 AG
(RNBx), 2016 WL 6700305, at *2 (C.D. Cal. Nov. 14, 2016).
petitions the court to appoint her as plaintiff's
guardian ad litem. (Doc. No. 34.) In her petition,
counter-defendant argues that plaintiff is suffering from
Alzheimer's disease and is incompetent to pursue this
action on his own behalf. (Id. at 3.) She points to
the following evidence in support of her argument: (i) her
own declaration, where she asserts that plaintiff has been
experiencing memory loss since early 2015, and that his
condition worsened after defendants' 2016 investigations
into plaintiff's insurance claim,  (Id. at
3, ¶ 1); (ii) an excerpt of plaintiff's medical
records from August 29, 2016, which includes a
physician's note that plaintiff “seems to have
short-term memory loss[, ] most likely Alzheimer's
disease, ” (Id. at 7-8); and (iii) a consent
form signed by plaintiff, agreeing to the appointment of
counter-defendant Slack as his guardian ad litem, (Doc. No.
34 at 9-10).
oppose counter-defendant's petition, asserting that she
has not met her burden to show plaintiff's incompetency.
(Doc. No. 35 at 3.) Defendants argue that even if the court
finds plaintiff to be incompetent, a guardian other than
counter-defendant should be appointed on his behalf, because
her conduct during the litigation has been
“confrontational and obstructionist.”
(Id. at 6-7.)
arguments in support of her petition seeking appointment as
guardian ad litem for plaintiff are unpersuasive. Plaintiff
has been an active participant in court proceedings up to
this date, filing his initial April 7, 2016 complaint on his
own behalf, and proceeding as a pro se plaintiff until
September 2016, when attorney Salazar substituted in as his
counsel. (Doc. No. 25); see also Farley v. Kernan,
No. 16CV188 LAB (BGS), 2017 WL 412259, at *4 (S.D. Cal. Jan.
31, 2017) (finding that petitioner had not presented
substantial evidence of incompetency to warrant a competency
hearing in part because he had actively participated in prior
habeas proceedings); Thompson v. Virga, No.
11-cv-2818-NLS, 2012 WL 1154473, at *2 (S.D. Cal. Apr. 4,
2012) (finding that there was not substantial evidence of
incompetence in part because “to date, this Court has
observed that Petitioner is effectively litigating this case
without counsel, ” “has complied with court
orders, ” and “has been an active participant in
this proceeding”). Indeed, in his original complaint,
plaintiff noted that he had a history of memory loss issues,
but did not allege then that any mental health issues
interfered with his ability to participate in court
proceedings. (Doc. No. 1-1 at 5, 10, ¶¶ 18, 34)
counter-defendant's petition does not provide substantial
evidence of incompetency. As part of the petition,
counter-defendant submits only a two page excerpt of
plaintiff's medical records, which appear to be based on
a single consultation with a physician. (Doc. No. 34 at 7-8.)
These medical records contain a brief note stating that
plaintiff has “short-term memory loss, ” and that
Alzheimer's disease is a likely diagnosis. (Id.
at 8.) However, the records do not make conclusive
determinations regarding plaintiff's condition or
competence, and they indicate plaintiff was advised to
consult with a neurologist. (Doc. No. 34 at 7.) The records
contain no other information about plaintiff's medical
history, the extent of his memory loss, or his capacity to
engage in court proceedings. (Id.); see
Jurgens, 2015 WL 6163464, at *3 (observing that evidence
of prior incompetency is “not alone a sufficient
indication” of present competence, “but is
relevant nonetheless”); Shack, 2012 WL
4111652, at *5 (finding that there was not substantial
evidence of incompetence sufficient to support holding a
competency hearing after petitioner “failed to submit
his own sworn declaration that he is mentally impaired and
does not understand the Court, ” and failed to provide
any evidence from his treating psychiatrist outlining his
diagnosis, medications, and treatment program); McElroy
v. Cox, No. ...