Williams v. Superior Court

• Decision Date: 26 January 2007
• Docket Number: No. D048962.,D048962.
• Citation: 54 Cal.Rptr.3d 13,147 Cal.App.4th 36
• Court: California Court of Appeals Court of Appeals
• Parties: Bradley WILLIAMS, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Kathleen Mayes, Real Party in Interest.

54 Cal.Rptr.3d 13

147 Cal.App.4th 36

Bradley WILLIAMS, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent Kathleen Mayes, Real Party in Interest.

No. D048962.

Court of Appeal, Fourth District, Division 1.

January 26, 2007.

Higgs Fletcher & Mack and John Morris, San Diego; Law Offices of Richard A. Williams and Richard A. Williams, San Diego, for Petitioner Bradley Williams.

No appearance for Respondent.

Niddrie Fish & Buchanan and David A. Niddrie, San Diego, for Real Party in Interest Kathleen L. Mayes.

HALLER, Acting P.J.

In this writ proceeding, a father challenges the trial court's appointment of the maternal grandmother as the guardian ad litem for his minor daughters in their wrongful death action to recover for their mother's death in an automobile collision. The father contends the court's appointment of the maternal grandmother violated his fundamental rights to the care, custody and control of his children. We conclude the contention is without merit. Because the father elected to bring an action on behalf of his daughters and had a conflict of interest with his daughters because he also sought his own recovery, the court's selection of a qualified guardian ad litem did not improperly interfere with the father's rights, even if the father would have preferred his own parents to serve in that role.

FACTS

Jennifer Williams was killed when her car was struck head-on by a tow truck. At the time of the accident, Jennifer was married to Bradley Williams (Father), but they had been living separately for approximately five months. The couple's two young daughters, Lauren (age eight) and Victoria (age four), were living with Jennifer. Father was paying child support and visited frequently with the girls. Since their mother's death, Lauren and Victoria have lived with Father.

Approximately seven weeks after Jennifer died, Father brought a wrongful death action against the tow truck driver, the tow truck company, and various other related entities. The complaint named Father, Lauren, and Victoria as plaintiffs, and identified attorneys Richard Feuerstein and Lee Lawless as guardians ad litem for the girls. Father and the daughters were represented by the same counsel (Richard A. Williams).¹ Two days later, Father filed a petition requesting the court to appoint Feuerstein and Lawless as guardians ad litem for the girls. Father identified these guardians as certified family law specialists and stated he believed they would protect his children's best interests. The court granted the petition the next day.

Shortly thereafter, Jennifer's mother, Kathleen Mayes (Maternal Grandmother), filed a petition seeking to replace the appointed guardians ad litem. Maternal Grandmother asserted that because of a financial conflict between Father and the minors in the proceeds of the wrongful death action, it was inappropriate for the parties to be represented by the same counsel. Maternal Grandmother detailed the facts regarding the couple's separation and their intention to file for dissolution. Maternal Grandmother said that Father's attorney had told her the wrongful death award would be divided equally between Father and the girls, and requested Maternal Grandmother testify in support of Father at the wrongful death trial. When Maternal Grandmother refused this request and suggested that the girls should be the primary beneficiaries of any award, Father's attorney discontinued his communications with her.

Father opposed the petition, arguing that Maternal Grandmother had no standing because she was not a party to the action. Father also asserted that there was no need to appoint Maternal Grandmother because he had already "recogniz[ed] the potential conflict that may exist in the distribution of any potential proceeds" and had obtained the appointment of two "well qualified family law specialists" to serve as the guardians ad litem.

At the hearing on Maternal Grandmother's petition, the trial court (Judge Linda Quinn) expressed substantial concern that the guardians ad litem intended to charge $300 per hour for their services, and repeatedly asked Attorney Williams to identify the reasons that the Maternal Grandmother (who was willing to serve without compensation) could not perform the role. The court noted that grandparents routinely serve as guardians ad litem for their grandchildren in similar situations. At the end of the hearing, the court ordered the parties to mediation on the guardian ad litem issue. The: court set a March 17 hearing if the parties did not resolve the guardian ad litem issue at the mediation.

One day before the parties were to attend the mediation, on February 21, Father's attorney filed a voluntary dismissal of the case without notifying Maternal Grandmother or her attorney. The clerk's office entered the dismissal on that date.

The next day, a mediation was held on the guardian ad litem issue. The participants included Father, Maternal Grandmother, their attorneys, the two guardians ad litem, and counsel handling probate matters. The mediation lasted several hours, but the parties were unable to reach an agreement. Despite the lengthy mediation, Father did not tell Maternal Grandmother or her attorney that he had dismissed the case.

One day later, Maternal Grandmother's counsel (Cynthia Chihak) called the superior court clerk's office regarding a question about filing briefs for the next hearing, and was surprised to learn that Attorney Williams had dismissed Father's lawsuit the day before the mediation.

The next day, on February 24, Maternal Grandmother filed an ex parte application with Judge Quinn, reasserting her arguments that Father had a serious conflict of interest, and asking that Maternal Grandmother be appointed guardian ad litem and that the lawsuit be reinstated. Maternal Grandmother gave Father notice of the motion and the hearing date. Father filed an opposition, stating that Maternal Grandmother had no standing because the case had been dismissed. Father also argued that Maternal Grandmother could not bring a lawsuit on his children's behalf because the decision to file a lawsuit lies exclusively with the parent. He stated that he had the "absolute right to decide which attorney will represent his minor children...."²

The hearing on Maternal Grandmother's ex parte application was held three days later, on February 27. Counsel for both parties appeared. At the hearing, Father's counsel reiterated that the court had no jurisdiction over the matter because Father had dismissed the lawsuit, and stated that he had dismissed the action because a decision had been made that "[t]here needed to be some slowing down, there needed to be some healing...." At the conclusion of the hearing, the court denied Maternal Grandmother's motion because it no longer had jurisdiction of the case once the dismissal was filed. The court stated the denial was based only on this "procedural issue" and that it was not ruling on the viability of any new lawsuit Maternal Grandmother may choose to file.

Within minutes of the hearing's conclusion, at 9:42 a.m., Maternal Grandmother filed a new wrongful death action on behalf of Lauren and Victoria. Father was named as a nominal defendant.³ Maternal Grandmother also filed an application to serve as guardian ad litem for the girls, but did not include any information about Father's objections to her appointment or the circumstances surrounding the recently-dismissed action. The clerk telephoned Judge Quinn to inquire if she wished the case to be assigned to her department, but Judge Quinn indicated the case should proceed through random judicial selection and the case was assigned to Judge Kevin Enright. Maternal Grandmother did not notify Father of this new lawsuit or her guardian ad litem application.

Approximately five hours later, Father's parents (Paternal Grandparents) filed a separate wrongful death action in a different division of the San Diego County Superior Court (the East County division) on behalf of Lauren and Victoria. The complaint was filed by a new counsel, Robert Ingram, who had been retained by Father for his daughters. Father was named as a nominal defendant. On the same day, Father filed a petition for appointment of the Paternal Grandparents as guardians ad litem in this new action. Neither Father nor the Paternal Grandparents notified Maternal Grandmother of this lawsuit or the guardian ad litem application. Father likewise did not inform the court about Maternal Grandmother's prior request to be appointed guardian ad litem or the circumstances surrounding his recently dismissed action.

On March 6, the superior court in Maternal Grandmother's action (Judge Enright) approved Maternal Grandmother's guardian ad litem application and appointed her as the guardian ad litem for Lauren and Victoria. Because Judge Enright was unaware of any opposition, he granted the application as a routine ex parte matter. Maternal Grandmother thereafter served all named defendants with the complaint, including the tow truck driver, the tow truck company owner, and Father.

Meanwhile, on March 9 and March 14, a superior court judge from the East County division of the superior court (Judge Eddie Sturgeon) approved Father's request that the Paternal Grandparents be appointed guardians ad litem in the Paternal Grandparents' action. As with Judge Enright, Judge Sturgeon granted this application as a routine ex parte matter because he was unaware of Maternal Grandmother's action and Father's prior dismissed action. In early April, Paternal Grandparents served the named defendants with the complaint.

Maternal Grandmother then filed a notice of related action, and requested Judge Enright to dismiss the Paternal Grandparents' action and confirm the validity of her wrongful death action. In her motion papers, Maternal Grandmother stated that she invited Father to become a plaintiff in the case and to keep his own attorney,...