Markham v. Tehachapi Unified School District et al

Filing 4

ORDER GRANTING the Motion to Appoint Brenda Markham as Guardian ad Litem for K.M., signed by Magistrate Judge Jennifer L. Thurston on 12/9/2015. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

K.M, (a minor, by and through her
parent and guardian ad litem, Brenda
Markham)
Plaintiff,

13
v.
14
15

TEHACHAPI UNIFIED SCHOOL
DISTRICT, et al.,

16

Defendants.

17

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:15-cv-01835 LJO JLT
ORDER GRANTING THE MOTION TO APPOINT
BRENDA MARKHAM AS GUARDIAN AD
LITEM FOR K.M
(Doc. 1-2)

On December 4, 2015, Brenda Markham initiated this action on behalf of minor Plaintiff K.M.

18
19

and requested the Court appoint her as the guardian ad litem for the child. (Doc. 1-2) Because the

20

Court finds Ms. Markham to be an appropriate guardian ad litem, the petition is GRANTED.

21

I.

22

Appointment of a Guardian Ad Litem
Pursuant to the Federal Rules of Civil Procedure, “[a] minor . . . who does not have a duly

23

appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2).

24

In addition, a court “must appoint a guardian ad litem - or issue another appropriate order - to protect a

25

minor or incompetent person who is unrepresented in an action.” Id. The capacity of an individual to

26

sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b).

27

Here, K.M. resides in California (Doc. 1 at 2) and the law of the state governs. Under

28

California law, an individual under the age of eighteen is a minor, and a minor may bring suit only if
1

1

a guardian conducts the proceedings. Cal. Fam. Code §§ 6502, 6601. The Court may appoint a

2

guardian ad litem to represent the child’s interests. Cal. Code Civ. P. § 372(a).

3

II.

Discussion and Analysis

4

Here, Plaintiff K.M. is an eight-year-old (Doc. 1-2 at 1) and, as a result, is a minor under

5

California law. See Cal. Fam. Code § 6502. As a child, her ability to bring pursue this action is

6

contingent upon the appointment of a guardian ad litem. In determining whether to appoint a particular

7

guardian ad litem, the court must consider whether the child and the guardian have divergent interests.

8

Cal. Code Civ. P. § 372(b)(1). “When there is a potential conflict between a perceived parental

9

responsibility and an obligation to assist the court in achieving a just and speedy determination of the

10

action, a court has the right to select a guardian ad litem who is not a parent if that guardian would best

11

protect the child’s interests.” Williams v. Super. Ct., 147 Cal. App. 4th 36, 38 (Cal. Ct. App. 4th 2007)

12

(internal quotation marks and citation omitted). “[I]f the parent has an actual or potential conflict of

13

interest with his child, the parent has no right to control or influence the child's litigation.” Id. at 50.

14

Upon review of the complaint, it does not appear there are adverse interests between the child

15

and her proposed guardian ad litem. Indeed, this action brings challenges under the Individuals with

16

Disabilities Education Improvement Act, the Americans with Disabilities Act, the Rehabilitation Act

17

and under 42 U.S.C. § 1983 related to claims that the child is being denied full educational

18

opportunities. Thus, the proposed guardian has no competing claims with the child and appointment of

19

Ms. Markham as the guardian ad litem for the child is appropriate. See Burke v. Smith, 252 F.3d 1260,

20

1264 (11th Cir. 2001) (“Generally, when a minor is represented by a parent who is a party to the

21

lawsuit and who has the same interests as the child there is no inherent conflict of interest.”); see also

22

Anthem Life Ins. Co. v. Olguin, 2007 U.S. Dist. LEXIS 37669, at *7 (E.D. Cal. May 9, 2007)

23

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

24

III.

Conclusion and Order

25

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

26

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

27

does not appear either proposed guardian has conflicting interests, and as such they may be appointed

28
2

1

to represent the interests of the children. Therefore, the Court is acting within its discretion to grant

2

the application.

3

Based upon the foregoing, IT IS HEREBY ORDERED:

4

1.

5
6

The motion for appointment of Brenda Markham as guardian ad litem for K.M. (Doc.
1-2) is GRANTED;

2.

7

Brenda Markham is appointed to act as guardian ad litem for Plaintiff K.M., and is
authorized to prosecute this action on her behalf.

8
9
10
11

IT IS SO ORDERED.
Dated:

December 9, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3