Lee et al v. Retail Store Employee Building Corporation et al

Filing 141

Order by Hon. Lucy H. Koh Granting 136 Motion to Appoint Guardian Ad Litem.(lhklc2S, COURT STAFF) (Filed on 2/13/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 United States District Court Northern District of California 12 MARIA W. LEE, et al., 13 Plaintiffs, 16 ORDER APPOINTING GUARDIAN AD LITEM v. 14 15 Case No. 15-cv-04768-LHK Re: Dkt. No. 136 RETAIL STORE EMPLOYEE BUILDING CORPORATION, et al., Defendants. 17 18 Before the Court is a motion by Plaintiff Maria Lee and Plaintiff Wen Lee (collectively, 19 “Plaintiffs”) to appoint Wen Lee as Maria Lee’s guardian ad litem for the purposes of the instant 20 action. The motion was not set for a hearing, and the Court finds this matter suitable for decision 21 without oral argument pursuant to Civil Local Rule 7-1(b). Having considered the submissions of 22 the parties, the relevant law, and the record in this case, the Court hereby GRANTS Plaintiffs’ 23 motion for the appointment of Wen Lee as guardian ad litem. 24 I. 25 26 27 28 BACKGROUND A. Factual Background From 2000 to 2013, Maria Lee (“Maria”) lived at the Casa del Pueblo Apartment (“CDP”) complex, a senior living facility. Second Amended Complaint (“SAC”), ECF No. 104, at ¶¶ 8, 12. 1 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 During this period, CDP was owned by Retail Store Employees Building Corporation (“Retail 2 Store”) and managed by Barcelon Associates Management Corp. (“Barcelon”). Id. ¶ 7–8. Maria 3 Lee is in her late 80s and was diagnosed with dementia in 2012. Id. ¶ 27. Maria Lee’s husband, 4 Yin-Chiau Joseph Lee (“Joseph”) lived with Maria Lee in the apartment until he passed away in 5 November 2012. Id. ¶ 12. Plaintiff Wen Lee (“Wen”), Maria Lee and Joseph Lee’s son, “became 6 his parents’ live-in caretaker in mid-2011 and was a resident and lived in their apartment at CDP.” 7 Id.1 Plaintiffs allege that Maria Lee was subject to mistreatment by Shuling Liu (“Liu”), a CDP 8 9 staff member. Specifically, Plaintiffs allege that “[f]rom 2004 until Wen Lee arrived to care for his parents, Shuling Liu called Ms. Lee “psycho” in Chinese (“shen-jing-bing”). Additionally, 11 after Maria Lee reported that her neighbors had stolen from her, Liu allegedly taunted Maria in 12 United States District Court Northern District of California 10 front of other Chinese-speaking tenants by stating “Let’s go to Maria’s home to steal, shall we?” 13 Id. ¶ 21. Plaintiffs allege that “[s]ince at least July 2004, Defendants have been aware that Maria 14 15 Lee suffers from mental health disabilities. Since at least 2006, Defendants have been aware that 16 because of those disabilities Ms. Lee has difficulty interacting with her neighbors.” Id. ¶ 16. In 17 January 2009, Maria allegedly requested a “reasonable accommodation” due to her “ongoing 18 issues with her neighbors.” Id. ¶ 22. CDP allowed Maria to transfer to a different apartment in 19 the same building. Id. ¶ 23. In June 2013, Defendants issued a Ninety Day Notice of Termination (“Eviction Notice”) 20 21 to Maria Lee, Wen Lee, and Lin Lee. Id. ¶ 29. On September 19, 2013, Retail Store and CDP 22 filed an unlawful detainer complaint against Maria Lee, Wen Lee, and Lin Lee in Santa Clara 23 County Superior Court. The unlawful detainer complaint stated that Maria Lee “materially 24 violated the terms of the lease agreement” by allowing Lin Lee to reside at CDP without 25 “obtaining the prior written approval.” First Amended Complaint (“FAC”), ECF No. 52, at ¶ 28. 26 27 28 1 Originally, Maria Lee’s daughter Lin Lee was also a plaintiff in the instant action. However, on August 25, 2016, Lin Lee was dismissed with prejudice for failure to prosecute. ECF No. 99. 2 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 The complaint further stated that Maria Lee’s “tenancy has been fraught with constant complaints 2 from neighbors who have been terrified by threatening, hostile, bizarre, and alarming behavior.” 3 Id. Maria Lee, Wen Lee, and Lin Lee failed to respond to the unlawful detainer action, and default 4 judgment was entered against them. SAC ¶ 33. Soon afterward, Maria Lee, Wen Lee, and Lin Lee 5 were evicted from the CDP apartment. Id. ¶ 34. As a result of the eviction, Plaintiffs allege that Wen Lee and Maria Lee have been forced 6 7 to rent a single room in a house due to their limited income and the loss of subsidized housing. Id. 8 ¶ 36. 9 10 B. Procedural History On October 17, 2014, Maria filed a housing discrimination complaint with the United States Department of Housing and Urban Development (“HUD”), which asserted that she was the 12 United States District Court Northern District of California 11 subject of discriminatory treatment by CDP staff. Pursuant to HUD policy, Maria’s complaint 13 was forwarded to the California Department of Fair Employment and Housing (“DFEH”). On 14 November 6, 2015, DFEH closed Maria’s case after finding that she had presented insufficient 15 evidence of discrimination. 16 Plaintiffs filed the original complaint in federal court on October 15, 2015, which mirrored 17 the allegations set forth in Maria’s HUD complaint. ECF No. 1. The original complaint asserted 18 causes of action under the Fair Housing Amendments Act (“FHAA”) and Fair Employment and 19 Housing Act (“FEHA”). Id. On April 6, 2016, Retail Store and CDP moved to dismiss the 20 original complaint. ECF No. 39. In lieu of opposing this motion, on May 2, 2016, Plaintiffs filed 21 the FAC, which kept the same two causes of action but added Barcelon as a Defendant. As a 22 result, the Court denied Defendants’ motions to dismiss as moot. ECF No. 53. On June 17, 2016, 23 Barcelon declined magistrate judge jurisdiction, and on June 21, 2016, the instant action was 24 reassigned to the undersigned judge. ECF No. 79. 25 Retail Store and CDP moved to dismiss the FAC on May 13, 2016. ECF No. 60. Maria 26 and Wen filed a response on June 20, 2016, and Retail Store and CDP filed a reply on June 29, 27 2016. ECF No. 76; ECF No. 81. Barcelon moved to dismiss the FAC on June 9, 2016. ECF No. 28 3 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 69. Maria and Wen filed a response on June 21, 2016, and Barcelon filed a reply on June 30, 2 2016. ECF No. 78; ECF No. 82. On August 9, 2016, the Court granted Defendants’ motions to 3 dismiss for three reasons: Maria was incompetent and thus lacked capacity to sue, Wen did not 4 have standing to sue, and Plaintiffs failed to state a claim under the FHAA or FEHA because they 5 failed to allege that any actions were taken because of a disability. First Order at 13. 2 Plaintiff’s 6 First Amended Complaint stated that Shuling Liu, the CDP staff member about whom Plaintiffs 7 complain, was Maria Lee’s legal guardian. Id. at 6. The Court stated that Maria Lee may only 8 bring suit in federal court through Shuling Liu, her duly appointed representative. Id. On September 8, 2016, Plaintiffs filed a Second Amended Complaint (“SAC”). ECF No. 9 10 104. The SAC alleges violation of the FHAA and FEHA, but significantly changes the factual 11 allegations supporting those claims. Id. On September 27, 2016, Retail Store and Barcelon each brought a Motion to Dismiss the United States District Court Northern District of California 12 13 Second Amended Complaint. ECF No. 111 (“Retail Store Mot.”); ECF No. 112 (“Barcelon 14 Mot.”). The Court granted in part and denied in part these motions on January 24, 2017. ECF No. 15 134. The Court denied the motion to dismiss Wen Lee’s and Maria Lees’s claims under the 16 FHAA, 42 U.S.C. § 3604(f)(1), and the FEHA, Cal. Gov’t Code § 12955(a), (k) to the extent that 17 those claims were based on the eviction of Wen Lee and Maria Lee. ECF No. 134, at 35. The 18 Court granted the motion to dismiss in all other respects. Id. Part of the justification for the Court’s 19 ruling was the fact that Maria Lee was incompetent to sue in her own capacity, Plaintiffs 20 represented that Shuling Liu was not Maria Lee’s guardian, and Maria Lee had not been appointed 21 a guardian ad litem. Id. at 10–11. The Court ordered that Plaintiffs file a motion for appointment 22 of a guardian ad litem for Maria Lee within 21 days of the Court’s order, or the Court would 23 dismiss Maria Lee from the action with prejudice. Id. at 11. Wen Lee and Maria Lee filed the instant motion to appoint a guardian ad litem on February 24 25 26 27 28 2 Although this case was initially filed pro se, Plaintiffs obtained counsel who appeared in the case on behalf of Plaintiffs on June 3, 2016. ECF Nos. 62, 63. Thus, Plaintiffs’ counsel filed the oppositions to Retail Stores’ and Barcelon’s motions to dismiss the FAC. Plaintiffs continue to be represented by counsel. 4 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 1, 2017. ECF No. 136. 2 II. LEGAL STANDARD Federal Rule of Civil Procedure (“Rule”) 17 governs parties’ capacity to sue or be sued. 3 4 Under Rule 17(b)(1), an individual’s capacity to be sued is governed by the law of the state in 5 which the individual is domiciled. Under California law, “[t]he test for incompetence . . . is 6 whether the party has the capacity to understand the nature or consequences of the proceeding, and 7 is able to assist counsel in preparation of the case.” In re Jessica G., 93 Cal. App. 4th 1180, 1186 8 (2001). If a party is found to be incompetent based on this test, then that party may only appear in 9 court through “a guardian or conservator of the estate or by a guardian ad litem.” Cal. Civ. Proc. 10 Code § 372(a)(1). Rule 17 “requires a court to take whatever measures it deems proper to protect an 11 United States District Court Northern District of California 12 incompetent person during litigation. Although the court has broad discretion and need not appoint 13 a guardian ad litem if it determines the person is or can be otherwise adequately protected, it is 14 under a legal obligation to consider whether the person is adequately protected.” United States v. 15 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir.1986). “A court has broad discretion in ruling on 16 a guardian ad litem application.” Kulya v. City & Cnty. of San Francisco, 2007 WL 760776, *1 17 (N.D. Cal. Mar. 9, 2007) (quoting Williams v. Superior Ct. of San Diego, 54 Cal. Rptr. 3d 13 18 (App. Dep’t Super. Ct. 2007)). 19 III. DISCUSSION 20 The instant motion requests that the Court appoint Wen Lee as Maria Lee’s guardian ad 21 litem for the purposes of this lawsuit. Under Rule 17 and California law, an incompetent person 22 can appear in court only through “a guardian or conservator of the estate or by a guardian ad 23 litem.” Cal. Civ. Proc. Code § 372(a)(1). The Court first considers whether Maria Lee is 24 incompetent, and then the Court considers whether Wen Lee is a proper guardian ad litem. 25 As discussed in the Court’s previous orders, the parties do not dispute that Maria Lee is 26 incompetent. See, e.g., ECF No. 134, at 9. Additionally, Plaintiffs have stated that Maria Lee has 27 dementia and other mental health issues that “affect her behavior and cognitive functions and 28 5 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 impair her from several major life activities.” SAC ¶ 5. Furthermore, when Plaintiffs filed the 2 First Amended Complaint (“FAC”), Plaintiffs attached a March 20, 2012 letter from Dr. Andrew 3 Wong (“Wong”). This letter stated that Maria Lee “does not have the capacity to manage her 4 financial affairs[,] . . . needs assistance in managing her daily activities and her health and safety 5 matters[,] . . . [and] cannot enter into any legally binding decisions on her own.” FAC at 21. 6 This evidence is sufficient to demonstrate that Maria Lee is unable to understand the 7 “nature or consequences of the . . . proceeding,” and is “unable to assist her [or his] counsel in the 8 preparation of her [or his] case. In re Sara D., 87 Cal. App. 4th 661, 666–67 (2001). Thus, the 9 Court reiterates its finding that Maria Lee is incompetent and therefore cannot pursue a lawsuit 10 11 without a guardian ad litem. See ECF No. 96, at 6; ECF No. 134, at 9. Next, the Court considers whether Wen Lee is a proper guardian ad litem for Maria Lee. United States District Court Northern District of California 12 Maria Lee signed a “Power of Attorney (with Durable Provision)” that gives power of attorney to 13 Wen Lee on July 5, 2011, before Maria Lee’s dementia diagnosis in 2012. See SAC Ex. 1. The 14 power of attorney provides that Wen Lee may act as “attorney-in-fact” on behalf of Maria Lee and 15 states that “the power of attorney shall not be affected by the subsequent disability or 16 incompetence of the Grantor.” Id. 17 In the Court’s January 24, 2017 order, the Court found that the power of attorney alone 18 was not sufficient to allow Wen Lee to sue on behalf of Maria Lee. ECF No. 134, at 9–10. 19 However, under California law there is a “rebuttable presumption in favor of the designated 20 attorney in fact . . . for appointment as guardian ad litem.” In re Marriage of Caballero, 27 Cal. 21 App. 4th 1139, 1152 (1994) (as amended) (emphasis in original). Therefore, there is a rebuttable 22 presumption that Wen Lee is a proper guardian ad litem for Maria Lee. No party has suggested 23 any facts that would rebut that presumption. 24 Furthermore, Wen Lee has included a declaration along with the instant motion stating that 25 he has an interest in the welfare of Maria Lee and has been Maria Lee’s caregiver since 2011. 26 Declaration of Wen Lee ¶ 2. Wen Lee also states that he has no conflicts of interest with Maria 27 Lee and will act in good faith to protect her interests. Id. ¶ 5. 28 6 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM 1 In summary, the Court finds that under Rule 17(c), appointment of a guardian ad litem is 2 necessary to protect the interests of Maria Lee in the instant action. Additionally, the Court finds 3 that Wen Lee is fit to act as Maria Lee’s guardian ad litem. 4 IV. 5 CONCLUSION For the foregoing reasons, the Court hereby APPOINTS Wen Lee as Maria Lee’s guardian 6 ad litem for purposes of the instant action. 7 IT IS SO ORDERED. 8 9 Dated: February 13, 2017 ______________________________________ LUCY H. KOH United States District Judge 10 11 United States District Court Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. 15-cv-04768-LHK ORDER APPOINTING GUARDIAN AD LITEM

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