Nationwide Agribusiness Insurance Company v. Garay et al

Filing 37

ORDER APPOINTING Anita Rojas as Guardian ad Litem for Minor Defendant B.J.C., signed by Magistrate Judge Jennifer L. Thurston on 9/20/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY,

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Plaintiff,
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v.
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GERARDO ALANN FELIX GARAY, et al., )
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Defendants.
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Case No.: 1:14-cv-00138 - AWI- JLT
ORDER APPOINTING ANITA ROJAS AS
GUARDIAN AD LITEM FOR MINOR
DEFENDANT B.J.C.
(Doc. 36)

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Anita Rojas seeks appointment as the guardian ad litem for defendant B.J.C, who is a minor.

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(Doc. 36). For the following reasons, the petition for the appointment of a guardian ad litem is

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GRANTED.

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I.

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Legal Standard
Pursuant to the Federal Rules of Civil Procedure, the court “must appoint a guardian ad litem -

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or issue another appropriate order - to protect a minor or incompetent person who is unrepresented in

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an action.” Fed. R. Civ. P. 17(c)(2). The capacity of an individual to be sued is determined “by the

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law of the individual’s domicile.” Fed. R. Civ. P. 17(b). Here, defendant B.J.C. resides in Kern

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County, California (Doc. 36 at 3), and the law of the state governs. Under California law, an

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individual under the age of eighteen is a minor, and a guardian ad litem may be appointed to represent

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the minor’s interests in a legal proceeding. Cal. Fam. Code §§ 6502, 6601; Cal. Code Civ. P. § 372(a).
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In determining whether to appoint a particular guardian ad litem, the court must consider

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whether the minor and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). “When

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there is a potential conflict between a perceived parental responsibility and an obligation to assist the

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court in achieving a just and speedy determination of the action, a court has the right to select a

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guardian ad litem who is not a parent if that guardian would best protect the child’s interests.” Williams

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v. Super. Ct., 147 Cal. App. 4th 36, 38 (Cal. Ct. App. 4th 2007) (internal quotation marks and citation

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omitted). “[I]f the parent has an actual or potential conflict of interest with his child, the parent has no

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right to control or influence the child’s litigation.” Id. at 50. The decision whether to appoint a

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guardian ad litem is “normally left to the sound discretion of the trial court.” United States v. 30.64

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Acres of Land, etc., 795 F.2d 796, 804 (9th Cir. 1986).

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II.

Discussion

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Here, the parties report that B.J.C. is a minor as defined by California law and the child of

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defendant Anita Rojas. (Doc. 36 at 3.) Upon review of the Answer and First Amended Counterclaim, it

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does not appear there are adverse interests between Ms. Rojas and B.J.C. Therefore, there is no

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apparent impediment to Ms. Rojas being appointed guardian ad litem for B.J.C. See Burke v. Smith,

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252 F.3d 1260, 1264 (11th Cir. 2001) (“Generally, when a minor is represented by a parent who is a

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party to the lawsuit and who has the same interests as the child there is no inherent conflict of

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interest.”); see also Anthem Life Ins. Co. v. Olguin, 2007 U.S. Dist. LEXIS 37669 at *7 (E.D. Cal. May

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9, 2007) (observing “[a] parent is generally appointed guardian ad litem”).

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III.

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Conclusion and Order
The decision whether to appoint a guardian ad litem is “normally left to the sound discretion of

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the trial court.” United States v. 30.64 Acres of Land, etc., 795 F.2d 796, 804 (9th Cir. 1986). In this

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case, it does not appear Ms. Cox has interests that conflict with the interest of her children. Therefore,

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the Court is acting within its discretion to grant the petitions.

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Accordingly, IT IS HEREBY ORDERED:

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1.

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The petition for appointment of Anita Rojas as guardian ad litem for defendant B.J.C.
(Doc. 36) is GRANTED; and

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Anita Rojas is appointed to act as guardian ad litem for defendant B.J.C., and is
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authorized to defendant Plaintiff’s claims on his behalf, and prosecute their counterclaim

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on his behalf.

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IT IS SO ORDERED.
Dated:

September 20, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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