J.W. v. Superior Court, B069928

• Decision Date: 05 August 1993
• Docket Number: No. B069928,B069928
• Citation: 22 Cal.Rptr.2d 527,17 Cal.App.4th 958
• Court: California Court of Appeals Court of Appeals
• Parties: J.W., a Minor, etc., et al. Petitioners, v. SUPERIOR COURT of Los Angeles County, Respondent.

Page 527

22 Cal.Rptr.2d 527

17 Cal.App.4th 958

J.W., a Minor, etc., et al. Petitioners, v. SUPERIOR COURT of Los Angeles County, Respondent.

No. B069928.

Court of Appeal, Second District, Division 4, California.

Aug. 5, 1993.

Horvitz & Levy, Lisa R. Jaskol, David S. Ettinger, Encino, Harriett Buhai Center for Family Law, Betty L. Nordwind, Los Angeles, and Blanche C. Bersch, Beverly Hills, for petitioners.

DeWitt Clinton, County Counsel and Frederick R. Bennett, Asst. County Counsel, specially appearing for County of Los Angeles.

Sari J. Steel, Pasadena, as amicus curiae on behalf of public guardian.

No appearance for respondent.

EPSTEIN, Associate Justice.

We hold that in a paternity action under the Uniform Parentage Act, a non-attorney mother cannot represent her minor son as guardian ad litem in propria persona, even though she cannot afford counsel and her son is a necessary party to the proceeding. We reach this conclusion because in California, as in other jurisdictions, absent specific statutory authorization, a non-attorney who represents another person in court proceedings violates the prohibition against unauthorized practice of law. The result is that the mother in this case, a party in her own right, may represent herself and may serve as guardian ad litem for her minor child, but she may not function as his attorney. We also consider how legal representation may be afforded to the minor.

Petitioners seek a writ of mandate commanding the respondent Superior Court to appoint the mother as the minor's guardian ad litem for the purpose of maintaining a propria persona paternity action on behalf of the minor. We shall deny the petition.

FACTUAL AND PROCEDURAL SUMMARY

Petitioners, a mother and her minor son, wish to initiate an action to establish paternity, as well as for support, custody and visitation arrangements, under the Uniform Parentage Act. (Civ.Code, § 7000-7018.) ¹ The mother cannot proceed alone in the action because the Act requires that a minor who is 12-years of age or older and who is claimed to be the child of the respondent, be a party to the proceeding. The minor in this case is over 12 years of age. The Act also requires that a minor party be represented by a guardian ad litem. (Civ.Code, § 7008.) ²

On May 27, 1992, pursuant to Civil Code section 7008 and Code of Civil Procedure section 373, subdivision (a), ³ the mother filed an application with the trial court requesting that she be appointed guardian ad litem for the minor for the purpose of initiating the paternity action on his behalf. Concurrently, the mother filed a proposed complaint and an application for a waiver of court fees and costs, based upon her inability to pay. The fee waiver application clearly stated the mother's intent to proceed without counsel both as a plaintiff in her own right and as guardian ad litem for her son.

Based upon petitioners' limited income, the trial court approved the waiver of fees and costs. It rejected the application for appointment of the mother as guardian ad litem because of her stated intention to proceed in that capacity in propria persona. The form rejection slip by the court includes the handwritten explanation that "[a] guardian ad litem cannot represent a minor in pro per."

On July 15, 1992, a second application for appointment as guardian ad litem was filed. This time the petitioners supported the application with a memorandum of points and authorities and declarations detailing their financial hardship and the near total lack of contribution from the alleged The trial court rejected the second application with essentially the same explanation it had given in its earlier rejection. The court cited Torres v. Friedman (1985) 169 Cal.App.3d 880, 215 Cal.Rptr. 604, for the proposition that a non-attorney guardian ad litem cannot represent his or her ward in propria persona.

father. The petitioners described their considerable efforts to obtain legal assistance on a pro bono publico basis. They had sought such assistance and had been turned down (except, on occasion, for help in writing or filling out legal papers) by the Los Angeles County Bar Association Lawyer Referral Service, the Harriett Buhai Center for Family Law, Public Counsel, and Bet Tzedek Legal Services. Petitioners declared that unless the court appointed the mother as guardian ad litem, they would be unable to prosecute their case.

Unable to initiate their paternity suit, petitioners brought this original proceeding seeking a writ of mandate or other appropriate relief. For purposes of the mandate proceeding, petitioners are represented by counsel from the Harriett Buhai Center for Family Law, as well as by other pro bono counsel. ⁴

DISCUSSION

I

Our concern is not whether the mother can be appointed as guardian ad litem for her son; such an appointment is clearly within the power of the court to make. The issue is whether, once appointed, the mother may represent her minor son in her capacity as his guardian ad litem for the purpose of maintaining a propria persona proceeding to determine paternity, and for support, custody, and visitation. Having fully briefed the representation issue, petitioners obviously intend that we look beyond the mere propriety of the appointment of a guardian ad litem. Clearly, the appointment and service of the mother as guardian ad litem, by themselves, would not involve unauthorized practice of law. (Bus. & Prof.Code, § 6125 ["No person shall practice law in California unless the person is an active member of the State Bar"].) Thus, as a technical matter, the mother's stated intent to proceed in propria persona is not a basis to deny her appointment as guardian ad litem. ⁵ We therefore address the question of whether she may proceed in propria persona in her representative capacity as guardian ad litem.

This issue is framed by the juxtaposition of two legislative schemes, the State Bar Act and the Uniform Parentage Act, which we discuss in turn below. We begin our discussion with a related subject: the representative capacity of a guardian ad litem under California common law and statutes.

A

"A guardian ad litem is not a party to an action, but merely the representative of record of a party." (Estate of Cochems' (1952) 110 Cal.App.2d 27, 29, 242 P.2d 56; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13, 118 Cal.Rptr. 21, 529 P.2d 53.) Under California law, a minor may appear by a guardian, by a conservator of the estate, or by a guardian ad litem. (Code Civ.Proc., § 372.) Under the Uniform Parentage Act, however, a minor who is a party "shall be represented by a guardian ad litem appointed by the court." (Civ.Code, § 7008.) Thus, under the Act, a minor party must be represented by a guardian ad litem. (Ibid.)

The essential difference between a general guardian and a guardian ad litem is that the former is usually appointed to "take care of the person or property of a

                minor, not for the purpose of prosecuting a lawsuit" (D.G. v. Superior Court, supra, 100 Cal.App.3d at p. 546, 161 Cal.Rptr. 117), while a guardian ad litem is appointed specifically to "prosecute or defend" a suit, and may be appointed even though there is a general guardian.  (Berry v. Chaplin (1946) 74 [17 Cal.App.4th 965] Cal.App.2d 652, 658, 169 P.2d 442;  4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 65, pp. 102-103.)   Subject to fiduciary duties owed to the ward and the requirement that court approval be obtained for certain acts (see Code Civ.Proc., § 372;  Berry v. Chaplin, supra, 74 Cal.App.2d at p. 657, 169 P.2d 442), the guardian ad litem has the power to assent to procedural steps that will facilitate a determination of the minor's case.  (Torres v. Friedman, supra, 169 Cal.App.3d at p. 887, 215 Cal.Rptr. 604.)   Thus, a guardian ad litem represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself in those proceedings
                

B

Petitioners contend that once a guardian ad litem is appointed there is no need to hire legal counsel even if the guardian ad litem is not an attorney. The authority cited for that proposition (Carpenter v. Superior Court (1888) 75 Cal. 596, 599, 19 P. 174; Fox v. Minor (1867) 32 Cal. 111, 118; Cole v. Superior Court (1883) 63 Cal. 86, 89) is inapposite since it does not discuss the requirement that persons who represent others in court must be attorneys. (See California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1482, 264 Cal.Rptr. 83 [decisions not precedent for issues they do not discuss].)

The State Bar Act, originally enacted in 1927, is a comprehensive legislative scheme regulating the practice of law. It prohibits the practice of law by anyone who is not an active member of the State Bar. (Bus. & Prof.Code, §§ 6000-6087.) Since the passage of this act, the general rule has been that "[w]hile any person may represent himself, and his own interests, at law and in legal proceedings: 'No person shall practice law [for another] in this State unless he is an active member of the state bar. (Bus. & Prof.Code, § 6125.)' " (Abar v. Rogers (1981) 124 Cal.App.3d 862, 865, 177 Cal.Rptr. 655.)

Only one California case has specifically addressed the role of the guardian ad litem in light of the prohibition against unauthorized practice of law. In Torres v. Friedman, supra, 169 Cal.App.3d 880, 215 Cal.Rptr. 604, a purported substitution of attorney instrument was held to be ineffective because it purported to substitute a non-attorney guardian ad litem as the attorney of record. The court stated that a guardian ad litem could not be substituted in as attorney of record because doing so would leave "the guardian ad litem in the untenable position of perhaps committing a misdemeanor: practicing law without a license. (Bus. & Prof.Code, § 6126.)" (Torres v. Friedman, supra, 169 Cal.App.3d at p. 888, 215 Cal.Rptr. 604.)

Petitioners characterize the Torres statement as a dictum to which trial courts...