Jackson v. Calone, et al.

Filing 234

ORDER signed by District Judge Troy L. Nunley on 9/14/20 GRANTING 229 Ex Parte Application for appointment of a guardian ad litem and APPOINTING Terry Jackson, Plaintiff's daughter, as guardian ad litem for Plaintiff. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOROTHY RODDEN JACKSON,

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Plaintiff,

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No. 2:16-cv-00891-TLN-KJN

v.

ORDER

RICHARD CALONE; CALONE &
HARREL LAW GROUP, LLP; CALONE
& BEATTIE, LLP; CALONE LAW
GROUP, LLP,
Defendants.

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This matter is before the Court on Plaintiff Dorothy Rodden Jackson’s (“Plaintiff”) ex

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parte application for appointment of a guardian ad litem. (ECF No. 229.) Defendants Richard

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Calone, Calone & Harrel Law Group, LLP, Calone & Beattie, LLP, and Calone Law Group, LLP,

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(collectively, “Defendants”) filed an opposition. (ECF No. 231.) Plaintiff filed a reply. (ECF

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No. 233.) For the reasons set forth below, the Court GRANTS Plaintiff’s application.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff filed this action on April 28, 2016. (ECF No. 1.) Plaintiff asserts a variety of

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claims arising from legal services that Defendant Richard Calone, Plaintiff’s former attorney,

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provided to her regarding the preparation of a family trust. (Id.) Plaintiff now seeks appointment

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of a guardian ad litem on the grounds that her physical impairments — she is 91-years old, legally

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blind, and suffers from compromised hearing, hypothyroidism, and diabetes — prevent her from

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adequately protecting her interests in this action. (ECF No. 229 at 6.)

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II.

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“A guardian ad litem is authorized to act on behalf of his ward and may make all

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appropriate decisions in the course of specific litigation.” United States v. 30.64 Acres of Land,

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795 F.2d 796, 905 (9th Cir. 1986). Federal Rule of Civil Procedure Rule 17(c) permits

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appointment of a guardian ad litem once the necessary showing is made pursuant to the law of the

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applicant’s domicile. See, e.g., AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1049 (E.D.

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Cal. 2015) (“A person’s capacity to sue is measured by the standard of the law of his domicile.”).

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STANDARD OF LAW

Here, the parties agree that Plaintiff is a domiciliary of Hawaii. Hawaii Rule of Civil

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Procedure 17(c) allows a court to appoint a next friend or guardian ad litem for a minor or

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incompetent person for purposes of prosecuting a lawsuit. Under Hawaii law, appointment of a

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guardian ad litem requires a showing that the applicant is “by reason of some legal disability

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unable to look after [her] own interests, and to manage the suit . . ..” Nawahie v. Peterson, 24

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Haw. 558, 562 (1918). “[C]ourts should appoint guardians ad litem for parties litigant when

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reasonably convinced that a party litigant is not competent, understandingly and intelligently, to

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comprehend the significance of legal proceedings and the effect and relationship of such

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proceedings in terms of the best interests of such party litigant.” Leslie v. Estate of Tavares, 91

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Haw. 394, 400 (1999).

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III.

ANALYSIS

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Plaintiff submits several exhibits in support of her ex parte application. (ECF No. 229-1.)

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Exhibit One is a declaration by Plaintiff’s counsel, who states: (1) communication with Plaintiff is

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unreasonably difficult given her hearing loss; (2) Plaintiff’s visual limitations render document2

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related discussions unreasonably difficult; and (3) Plaintiff’s overall health causes her to tire

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easily, which makes extended communications unreasonably difficult. (Id. at 5.) Exhibit Two is

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deposition testimony from Dr. Lee Scaief, Plaintiff’s ophthalmologist, who testifies that Plaintiff

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is legally blind and therefore struggles to read legal documents. (Id. at 14, 16.) Exhibit Three

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includes two declarations by Dr. John Kurap, Plaintiff’s physician. In a 2017 declaration, Dr.

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Kurap describes Plaintiff’s medical conditions, including that she is legally blind, her hearing is

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greatly compromised, and she is in overall frail health. (Id. at 23.) Dr. Kurap also states that

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Plaintiff’s medical problems and associated pain render her depressed and unable to deal with

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stressful situations. (Id.) In a 2020 declaration, Dr. Kurap asserts that he last examined Plaintiff

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in January 2020, and Plaintiff’s condition is the same as he described in the 2017 declaration. (Id.

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at 21.) Exhibit Four is a declaration by Plaintiff, in which she describes her medical conditions,

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her difficulty in understanding and responding to her attorneys about her case, and her desire for

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the Court to appoint her daughter, Terry Jackson, as her guardian ad litem in this matter. (Id. at

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32.) Finally, Exhibit Five is a declaration by Terry Jackson, stating that she has no financial

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interest in this litigation and is willing to serve as her mother’s guardian ad litem. (Id. at 34–35.)

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In opposition, Defendants primarily take issue with Plaintiff’s decision to bring her

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request as an ex parte application rather than a regularly noticed motion. (ECF No. 231 at 1.)

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However, it bears mentioning that Defendants were given sufficient notice to file an opposition to

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the ex parte application. Therefore, whether or not an ex parte application was proper, it appears

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Defendants were not harmed by the ex parte filing. It is also unlikely that Defendants will suffer

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any harm as a result of granting Plaintiff’s request for a guardian ad litem, which is a procedure

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intended to protect Plaintiff’s interests. See Davis v. Walker, 745 F.3d 1303, 1310 (9th Cir.

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2014). To the extent there is any risk in appointing a guardian without following formal motion

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procedures, that risk is diminished by this Court’s continued supervision of this matter. If

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Plaintiff later objects to the continued representation of a guardian on her behalf, she may so

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advise this Court at any point in the future. For these reasons, the Court is not persuaded that

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Plaintiff’s application should be denied solely because it was brought ex parte.

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Notably, Defendants do not argue that Plaintiff is not incompetent or that Terry Jackson is

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somehow unsuitable to serve as guardian ad litem. Although Defendants summarily argue that

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“Plaintiff’s condition has not deteriorated” in the last several years (ECF No. 231 at 4),

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Defendants fail to develop the argument further or otherwise challenge Plaintiff’s evidence. As it

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is, Plaintiff has provided ample evidence supporting her claim that a guardian ad litem is needed

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to protect her interests. It is also compelling that Plaintiff herself, rather than the Court or some

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other party, is requesting that she be represented by a guardian.

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Accordingly, the Court finds Plaintiff qualifies for appointment of a guardian ad litem
because her physical impairments prevent her from understanding and meaningfully participating

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in her legal proceedings. See Leslie, 91 Haw. at 400; see also In re Doe, 108 Haw. 144, 147

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(2005). The Court also finds Terry Jackson is a suitable representative based on her close family

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relationship to Plaintiff, her lack of financial interest in the case, and her willingness to represent

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her mother. Therefore, the Court GRANTS Plaintiff’s application.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Plaintiff’s ex parte application for

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appointment of a guardian ad litem (ECF No. 229) and appoints Terry Jackson, Plaintiff’s

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daughter, as guardian ad litem for Plaintiff.

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IT IS SO ORDERED.
DATED: September 14, 2020

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Troy L. Nunley
United States District Judge

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