United States District Court, S.D. California
C.R., A MINOR, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN BRIAN RUSSELL, Plaintiff,
CITY OF SAN DIEGO, et al., Defendants.
ORDER REQUIRING FILING OF MOTION TO APPOINT GUARDIAN
Ruben B. Brooks, United States Magistrate Judge
September 4, 2019, the Court issued an order directing that a
motion for appointment of guardian ad litem be filed on
behalf of Plaintiff. (See Sept. 4, 2019 Order 4, ECF
No. 5.) That same day, Plaintiff filed a response to the
order and requested further instruction from the Court [ECF
No. 6]. For the reasons set forth below, the Court sees no
need to alter its prior order and again directs Plaintiff to
file a motion for appointment of guardian ad litem prior to
the parties' meeting at the subject premises, due to take
place no later than fourteen days prior the early neutral
filed this lawsuit on July 26, 2019, alleging claims under
the American Disabilities Act, 42 U.S.C. § 12131, et
seq. and California Disabled Persons Act, Cal. Civ. Code
§ 54.1, et seq. (Compl., ECF No. 1.) The action
is brought by C.R., a minor, by and through her father and
"natural guardian," Brian Russell, against
Defendant City of San Diego. (Id.) On September 4,
2019, the Court issued a "Notice and Order (1) Setting
Early Neutral Evaluation Conference in an A.D.A. Case and (2)
Requiring Filing of Motion to Appoint Guardian Ad
Litem." (See Sept. 4, 2019 Order, ECF No. 5.)
The order directed that Plaintiff file a motion for
appointment of guardian ad litem prior to the parties'
meeting at the premises at issue in the Complaint, required
to be held no later than fourteen days prior to the early
neutral evaluation conference set for October 15, 2019, at
9:00 a.m. (Id. at 4.) C.R. subsequently filed a
response to the Court's order, in which she argues that
the appointment of a guardian ad litem is not required in
this action because she is represented by "her father
and natural (general) guardian." (Pl.'s Resp. 2, ECF
No. 6.) She indicates that notwithstanding the authority set
forth in her response, if it is the Court's preference
that she file a motion for appointment of guardian ad litem,
she will do so within the time frame ordered. (Id.
Rule 17 of the Federal Rules of Civil Procedure, the
following representatives may sue on behalf of a minor: a
general guardian, a committee, a conservator, or a like
fiduciary. Fed.R.Civ.P. 17(c)(1). A minor who does not have a
duly appointed representative "may sue by a next friend
or by a guardian ad litem." Id. R. 17(c)(2).
"The court must appoint a guardian ad litem-or issue
another appropriate order-to protect a minor or other
incompetent person who is unrepresented in an action."
Id. "The decision to appoint a guardian ad
litem under Rule 17(c) is normally left to the sound
discretion of the trial court . . . ." Davis v.
Walker, 745 F.3d 1303, 1310 (9th Cir. 2014).
is no dispute that C.R. is a minor child. The issue before
the Court, therefore, is whether C.R. has a duly appointed
representative pursuant to Rule 17(c)(1). Plaintiff does not
contend that she is represented by a committee, conservator,
or a like fiduciary. She does allege, however, that Brian
Russell is "her father and natural (general)
guardian" and, therefore, may represent her interests in
this lawsuit. (Pl.'s Resp. 2, ECF No. 6.) Plaintiff
relies on cases from other circuits, including Burke v.
Smith, 252 F.3d 1260, 1264 (11th Cir. 2001), as well as
three cases from the Eastern District of California, in
support of her position. (Id. at 2-3.) These cases
generally stand for the proposition that the appointment of a
guardian ad litem is not required when a child is otherwise
represented by a parent or legal guardian. See,
e.g., Burke, 252 F.3d at 1264 ("In the
present case, Tammy was 'otherwise represented' by
her mother who brought this action on her behalf. Thus, Rule
17(c) did not require the court to appoint a guardian ad
litem."); see also Doe ex rel. Sisco v. Weed Union
Elem. Sch. Dist., No. 2:13-CV-01145-GEB-CMK, 2013 WL
2666024, at *1 (E.D. Cal. June 12, 2013) (finding
parents' application for appointment of guardian ad litem
unnecessary because "Rule 17(c)(1)(A) permits a
'general guardian' to sue in federal court on behalf
of a minor, and '[a] parent is a guardian who may so
sue'") (citation omitted).
Court acknowledges that there is authority, albeit nonbinding
authority, supporting Plaintiff's position that the
appointment of a guardian ad litem is not needed in this
case. Nevertheless, it is the general practice of this court
and others to appoint a guardian ad litem in cases involving
minors even when the minor's parent represents the
minor's interests in the lawsuit. In A.R. v.
Long's Drug Stores California, LLC, in which the
complaint was filed on behalf of a minor by the minor's
mother, the court granted the mother's motion to appoint
her as guardian ad litem. See Order, A.R. v.
Long's Drug Stores California, LLC, Case No.
18cv2567-JLS(RBB) (S.D. Cal. Feb. 15, 2019), ECF No. 37.
See also Order, Rodriguez v. United States of
America, Case No. 06cv2753-W(JMA) (S.D. Cal. Apr. 21,
2010), ECF No. 148 (granting petition for appointment of
guardian ad litem brought by "natural mother" of
two minor plaintiffs); Order, D.L. v. Poway Unified Sch.
Dist., Case No. 19cv0780-GPC(RBB) (S.D. Cal. May 10,
2019), ECF No. 6 (granting parents' petition for guardian
ad litem in case filed on behalf of their son). Additionally,
in a recent case in the Eastern District of California, the
court aptly explained its basis for denying a motion for an
order finding that a guardian ad litem was unnecessary:
The Court takes seriously its obligation to protect the
interest of the minors in actions that are before the Court.
In this regard, it is this Court's practice to require a
petition for appointment of a guardian ad litem, even where a
parent is seeking to represent his child in the litigation,
and the Court sees no reason to deviate from customary
practice in this matter. While the parent may be appointed as
a guardian ad litem, the Court requires a declaration from
the parent asserting that the parent understands the
responsibilities in serving as a guardian ad litem, has no
conflict of interest with the child, and is willing to serve
as guardian ad litem in this matter. While appointment of the
parent to serve as guardian ad litem is usually made on an ex
parte application and involves minimal discretion by the
court where there is no conflict of interest, the Court shall
still require that the petition for appointment as guardian
ad litem be filed.
Hasnat v. Pompeo, Case No. 1:19-cv-00388-LJO-SAB,
2019 U.S. Dist. LEXIS 65150, at *4-5 (E.D. Cal. Apr. 15,
2019) (citations omitted). The Court agrees with this
rationale, and sees no need here to amend its general
practice of appointing a guardian ad litem in cases in which
the minor's parent seeks to represent the minor's
interests in the lawsuit.
on the foregoing, the Court again ORDERS
Plaintiff to file a motion for appointment of guardian ad
litem prior to the parties' required meeting at the