Pantell v. Antioch Unified School District et al

Filing 8

ORDER by Judge Kandis A. Westmore granting 6 Motion to Appoint Parent Adrienne Pantell as Minor D.P.'s Guardian Ad Litem. (kawlc1, COURT STAFF) (Filed on 4/4/2014)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 7 8 9 10 ANDRIENNE PANTELL, as Guardian ad Litem of DP, a minor, Case No.: CV 14-01381-KAW ORDER GRANTING APPLICATION TO APPOINT GUARDIAN AD LITEM Plaintiff, v. ANTIOCH UNIFIED SCHOOL DISTRICT, et al., Defendants. United States District Court Northern District of California 11 12 Plaintiff Adrienne Pantell, as Guardian ad Litem of minor D.P., filed this case on March 13 25, 2014. She asserts causes of action on behalf of her son based on alleged violations of the 14 Americans with Disabilities Act, federal civil rights statutes, and state tort causes of action. 15 (Compl., Dkt. No. 1.) Plaintiff claims that her son’s civil rights were violated through the use of 16 restraints and the denial of nutrition and restroom breaks at the non-public school D.P. attended as 17 his special education placement. (Compl. ¶¶ 35-46, 51.) 18 Pantell seeks appointment as guardian ad litem for her minor child, D.P., who is nine years 19 old. (Appl. for Appointment of Guardian Ad Litem, “Appl.,” Dkt. No. 6.) The application is 20 GRANTED for the reasons set forth below. 21 22 I. LEGAL STANDARD “A minor or an incompetent person who does not have a duly appointed representative 23 may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem— 24 or issue another appropriate order—to protect a minor or incompetent person who is 25 unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). 26 An individual’s capacity to sue is determined “by the law of the individual's domicile.” 27 Fed. R. Civ. P. 17(b). Under California law, an individual under the age of eighteen is a minor. 28 Cal. Fam. Code § 6502(a)(2). A minor may bring suit as long as a guardian conducts the 1 1 proceedings. Cal. Fam. Code § 6601. In deciding whether to appoint a guardian ad litem, the 2 court must consider whether the minor and the guardian have divergent interests. Cal. Civ. Proc. 3 Code § 372(b)(1). When there is no conflict of interest, the guardian ad litem appointment is 4 usually made on an ex parte application and involves minimal exercise of discretion by the court. 5 Kulya v. City and County of San Francisco, No. C 06-06539 JSW, 2007 WL 760776, * 1 (N.D. 6 Cal. Mar. 9, 2007) (citation omitted). “[I]f the parent has an actual or potential conflict of interest 7 with his child, the parent has no right to control or influence the child's litigation.” Williams v. 8 Superior Court, 147 Cal. App. 4th 36, 50 (2007). II. 9 10 DISCUSSION D.P. was born in 2004, and was nine years old at the time the application was filed. United States District Court Northern District of California 11 (Appl. ¶ 1.) Thus, he is under the age of eighteen and is a minor under California law. See Cal. 12 Fam. Code § 6502(a)(2). His ability to bring suit is, therefore, contingent upon the appointment 13 of a guardian ad litem. See id. § 6601. Pantell, the child’s biological mother, may serve as his 14 guardian ad litem so long as she does not have an interest adverse to his. See Williams, 147 Cal. 15 App. 4th at 50. 16 Pantell filed this action on behalf of her child, and so complains of the same injury and 17 seeks the same relief. See Gonzalez v. Reno, 86 F. Supp. 2d 1167, 1185 (S.D. Fla. 2000), aff’d, 18 212 F. 3d 1338, 1351-53 (11th Cir. 2000) (“[W]hen a parent brings an action on behalf of a child, 19 and it is evident that the interests of each are the same, no need exists for someone other than the 20 parent to represent the child’s interests under Rule 17(c).”). Accordingly, the court finds that the 21 appointment of the proposed guardian ad litem is in the minor’s best interest. III. 22 23 24 25 26 CONCLUSION For the reasons set forth above, Plaintiff’s application for appointment as guardian ad litem is GRANTED. IT IS SO ORDERED. Dated: April 4, 2014 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 27 28 2

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