Lota v. Home Depot U.S.A., Inc.

Filing 27

NOTICE OF REFERRAL and ORDER (1) regarding further submissions in support of 19 Petition for Appointment of Guardian Ad Litem and (2) setting hearing date. Mr. Lota's attorney shall file a letter brief (not to exceed 5 pages) and additional d eclaration(s) by May 18, 2012. Defendant may, but need not, file a letter brief in response by May 25, 2012. Further, the court sets a hearing on 19 Mr. Lota's counsel's Petition on June 21, 2012 at 11:00 in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue, San Francisco, California, 94102. Signed by Judge Laurel Beeler on 5/1/2012. (lblc2, COURT STAFF) (Filed on 5/2/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco
MIGUEL LOTA,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-05777 YGR (LB)
Plaintiff,

v.
HOME DEPOT USA, INC.,

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NOTICE OF REFERRAL AND
ORDER (1) REGARDING FURTHER
SUBMISSIONS IN SUPPORT OF
PETITION FOR APPOINTMENT OF
GUARDIAN AD LITEM AND (2)
SETTING HEARING DATE

Defendant.
[Re: ECF Nos. 19, 24]

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_____________________________________/
In this action, Miguel Lota has sued his former employer for employment discrimination. Notice

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of Removal, ECF No. 1, Ex. A. On April 23, 2012, the district court referred Mr. Lota’s counsel’s

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Petition for Appointment of Guardian Ad Litem to a magistrate judge for a report and

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recommendation, and the Petition was referred to the undersigned. Petition, ECF No. 19; Referral

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Order, ECF No. 24.

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Federal Rule of Civil Procedure 17 governs the capacity of parties to sue or be sued in federal

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court. Courts must look to the law of the state of the individual’s domicile to determine whether that

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party has capacity to participate as a party in the litigation. Fed. R. Civ. P. 17(b)(1). In California, a

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party is incompetent if it lacks the capacity to understand the nature or consequences of the

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proceeding, or is unable to assist counsel in the preparation of the case. See In re Jessica G., 93 Cal.

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App. 4th 1180, 1186 (2001) (applying this standard to dependency proceedings); see also Cal. Prob.

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Code § 1801 and Cal. Pen. Code § 1367; In re Sara D., 87 Cal. App. 4th 661, 666-67. A court may
C 11-05777 YGR (LB)
NOTICE OF REFERRAL

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find a party incompetent only if a preponderance of the evidence supports such a finding. See

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Jessica G., 93 Cal. App. 4th at 1186. A guardian ad litem may be appointed for an incompetent

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adult only (1) if he or she consents to the appointment or (2) upon notice and hearing. See id. at

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1187-88.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Here, the Petition contains the following allegations:
1. Mr. Lota is incompetent because he suffers from mental retardation, has impaired memory and
speech, and is unable to read or write;
2. Because of Mr. Lota’s incompetence, the appointment of a guardian ad litem is necessary to
protect his interests in this action;
3. Ms. Lota, the proposed guardian ad litem, is Mr. Lota’s wife, and she has been his wife since
July 6, 1992;
4. Ms. Lota is competent and qualified to understand and protect Mr. Lota’s rights and has no
interests adverse to Mr. Lota’s interests in this action; and

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5. Ms. Lota consents to her appointment as guardian ad litem for Mr. Lota.

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Petition, ECF No. 19 at 1-2. The Petition also includes Ms. Lota’s declaration “under penalty of

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perjury under the laws of the State of California that the foregoing [P]etition is true and correct.” Id.

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at 2.

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The district court, in its order referring the Petition to a magistrate judge for a report and

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recommendation, suggested that additional documentation might assist the court in its determination.

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Referral Order, ECF No. 24 at 1. Such documentation would address whether Mr. Lota has a

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representative (such as a general guardian, conservator, or other like fiduciary), whether there has

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been any prior adjudication of Mr. Lota’s mental competence or capacity, and whether Ms. Lota is

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qualified to be appointed as Mr. Lota’s guardian ad litem. Id.; see Sarracino v. Superior Court, 13

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Cal.3d 1, 12 (1974) (finding petition for appointment of guardian ad litem sufficient where

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accompanied by guardian’s declaration setting out facts in support of the petition’s allegations).

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In light of the District Court’s suggestion and the legal standards set forth above, the court

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believes that the submission of further information and a hearing on the Petition is appropriate. In

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that regard, Mr. Lota’s attorney shall file a letter brief (not to exceed 5 pages) and additional
C 11-05777 YGR (LB)
NOTICE OF REFERRAL

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declaration(s) addressing the above-referenced points and setting forth additional facts regarding the

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same. The letter brief and declaration(s) shall be filed by May 18, 2012. Defendant may, but need

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not, file a letter brief in response by May 25, 2012. Further, the court sets a hearing on Mr. Lota’s

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counsel’s Petition on June 21, 2012 at 11:00 in Courtroom C, 15th Floor, United States District

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Court, 450 Golden Gate Avenue, San Francisco, California, 94102.

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IT IS SO ORDERED.
Dated: May 1, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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