R.L. v. Taylor CA1/5

Filed 2/3/15 R.L. v. Taylor CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

R.L., a Minor, etc., et al., Plaintiffs and Appellants, A141311 v. KENT TAYLOR et al., (Contra Costa County Super. Ct. No. MSC12-00901) Defendants and Respondents.

Minor R.L. appeals from the trial court’s order substituting her mother as guardian ad litem and dismissing her personal injury action. We affirm. I. F ACTUAL AND P ROCEDURAL B ACKGROUND In February 2012, five-year-old R.L. was allegedly injured at her mother’s rented home when an iron gate fell onto her. In April 2012, R.L., acting through her father as guardian ad litem, filed a lawsuit against her mother’s landlord, Kent Taylor and Kent Taylor Construction, Inc. (collectively Taylor), alleging negligence and strict liability causes of action. The complaint alleged that R.L. lived “part-time” with her mother. Taylor answered the complaint, asserting mother’s and father’s contributory negligence and assumption of the risk as affirmative defenses. In October 2013, R.L.’s mother, represented by Taylor’s trial counsel, filed a motion seeking to terminate father as guardian ad litem and dismiss the complaint. In support of the motion, R.L.’s mother submitted a declaration stating that she and R.L.’s father were divorced, she had recently obtained sole legal and physical custody of R.L., and she objected to prosecution of the lawsuit. Specifically, R.L.’s mother stated that she

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did “not believe that [Taylor] was at fault with regard to the fence and the accident” and did not wish R.L., who was the only witness to the accident, to be subject to trauma from testifying at trial. After opposition and a contested hearing, the trial court granted the motion. The trial court’s order provides: “The motion to discharge [father] as Guardian Ad Litem for his daughter . . . and to replace him with [mother], and thereafter to dismiss the case at [mother’s] request is granted. In addition to all of the pleadings submitted regarding this mater, the court also relied heavily on the oral presentation made by [mother] at the time of the hearing in reaching this decision. It is clear that [R.L.’s] parents are involved in a long standing, high conflict divorce proceeding and custody battle. This matter was filed over the vocal objections of [mother], who genuinely believes that the added stress suffered by her daughter caused by this litigation has caused [R.L.] harm. It is undisputed from the family law records that [mother] currently has sole legal and physical custody of [R.L.] As such she has the sole right to decide whether to proceed with this litigation. Motion granted and this case is dismissed without prejudice.” (Italics added.) R.L. filed a timely notice of appeal.1 II. DISCUSSION “A minor who is a party in a lawsuit must appear ‘ “by a guardian ad litem appointed by the court in which the action or proceeding is pending . . . .” (Code Civ. Proc., § 372, subd. (a) . . . .)’ [Citations.] If the minor is under 14 years old and is a plaintiff, ‘the appointment must be made before the summons is issued, upon the application of . . . a relative or friend of the minor.’ (Code Civ. Proc., § 373, subd. (a) . . . .) . . . A court has broad discretion in ruling on a guardian ad litem application. [Citation.] ‘ “In the absence of a conflict of interest . . . , the appointment is usually made