Alexander v. The City of Brisbane Inc. et al

Filing 32

Order by Magistrate Judge Alex G. Tse denying without prejudice 6 plaintiff's application for appointment of guardian ad litem and granting 29 plaintiff's unopposed request for extension of time to file a response to defendants 9; motion to dismiss. Counsel for minor plaintiffs T.A. and V.A. is directed to submit a motion to appoint a guardian ad litem by 3/5/2021. Plaintiff's response to defendants' motion to dismiss 27 is now due on 3/24/2021. Defendants' reply is now due on 4/7/2021. The hearing on the motion is rescheduled to 4/16/2021. (agtlc2S, COURT STAFF) (Filed on 2/17/2021)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 OLGA ALEXANDER, 7 Plaintiff, 8 v. 9 THE CITY OF BRISBANE INC., et al., 10 Defendants. 11 United States District Court Northern District of California Case No. 20-cv-04563-AGT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; EXTENDING BRIEFING SCHEDULE ON BRISBANE DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT 12 13 The Court issues this order to address two case management issues. 14 First, pro se plaintiff Olga Alexander brought this case on behalf of herself and her minor 15 twins, T.A. and V.A., against the City of Brisbane and four Brisbane police officers (“Brisbane 16 Defendants”), and Timothy Alexander, Ms. Alexander’s husband and T.A.’s and V.A.’s father.1 17 ECF No. 20 (“FAC”). The Court previously deferred ruling on Ms. Alexander’s July 2020 18 application to be appointed as guardian ad litem for T.A. and V.A., explaining that: 19 Plaintiff may appear pro se on her own behalf, but as a non-attorney, she “has no authority to appear as an attorney for others than [her]self.” Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (citation omitted). This rule applies equally to family members: “a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer.” Id. at 877; see Gonzalez v. Arizona Dep’t of Health Servs., No. CV-08-2391-PHX-DGC, 2009 WL 383535, at *1 (D. Ariz. Feb. 13, 2009) (denying without prejudice a pro se parent’s motion to file on behalf of his minor son). And, because T.A. and V.A. are under the age of eighteen and thus minors under California law, they cannot represent themselves. See CastilloRamirez v. Cty. of Sonoma, No. C-09-5938 EMC, 2010 WL 1460142, at *1 (N.D. Cal. Apr. 9, 2010) (citing Fed. R. Civ. P. 17 and Cal. Fam. Code §§ 6502, 6601). Put differently, T.A. and V.A. (as long as 20 21 22 23 24 25 26 27 28 1 Timothy Alexander was added as a defendant in the first amended complaint, filed January 7, 2021, and has not yet appeared in this case. 1 minors) cannot assert the claims in this case unless a guardian ad litem is appointed and the guardian ad litem is represented by counsel. 2 Given Plaintiff’s current pro se status and her representations that she is actively attempting to retain counsel, the Court will defer ruling on her guardian ad litem application [to allow Plaintiff time] to retain a lawyer and have the lawyer make an appearance in this case on her behalf. 3 4 5 6 ECF No. 9 at 1–2. To date, Ms. Alexander remains unrepresented. She did, however, retain 7 counsel for T.A. and V.A. in late January 2021. ECF No. 26. Given that Ms. Alexander is still 8 proceeding pro se, her pending application to be appointed as guardian ad litem (ECF No. 6) is 9 denied without prejudice.2 And because no guardian ad litem has been appointed in this case, counsel for T.A. and V.A. is directed to submit a motion to appoint a guardian ad litem by March 11 United States District Court Northern District of California 10 5, 2021. Second, the Court grants Ms. Alexander’s unopposed request for an extension of time to 12 13 file a response to the Brisbane Defendants’ pending motion to dismiss. ECF Nos. 28, 29. The 14 Court will also give the Brisbane Defendants additional time to file their reply. Ms. Alexander’s 15 response to the motion to dismiss is now due on March 24, 2021; the Brisbane Defendants’ reply 16 is now due on April 7, 2021; and the hearing on the motion to dismiss is reset to April 16, 2021 at 17 2:00 p.m. IT IS SO ORDERED. 18 19 Dated: February 17, 2021 20 ALEX G. TSE United States Magistrate Judge 21 22 23 24 25 26 27 28 2 Even if Ms. Alexander was represented by counsel, the Court notes that there appears to be a potential conflict between the interests of Ms. Alexander and her minor twins, since she is now suing their father who apparently shares partial physical custody of T.A. and V.A. (see FAC ¶ 2), which might preclude her from serving as the twins’ guardian ad litem in this case. See Reed v. City of Modesto, 2013 WL 1759611, at *1 (E.D. Cal. Apr. 24, 2013) (“When there is a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action, a court has the right to select a guardian ad litem who is not a parent if that guardian would best protect the child’s interests.”) (citation omitted). 2

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