Case Number: EC060732    Hearing Date: July 24, 2014    Dept: NCD

Defendants’ Motion for Order of Court Appointing Guardian Ad Litem on Behalf of Mary W. Lamy

TENTATIVE:
Motion is DENIED. The moving parties have failed to establish that plaintiff is incompetent such that the court may appoint a Guardian Ad Litem.

Relief apparently sought in the opposition to excuse plaintiff from the requirement to appear personally at mediation is DENIED. Such relief must be sought from the mediator pursuant to CRC Rule 3.894.

FACTUAL BACKGROUND:
Plaintiff Mary W. Lamy, 91, and Plaintiff June E. Loewy, 87, are life partners who resided together at Leisure World in Seal Beach. Plaintiff Loewy, who considers herself a religious Jew, met defendant Rabbi Marcus who ran a social club for Jewish seniors at Leisure World, and in 2005 asked defendant Rabbi Marcus if he would officiate at Loewy’s funeral, to which defendant agreed, and Loewy gave him a donation of $1,000. Five years later, Rabbi Marcus approached Loewy with a report about another person who had wanted Rabbi Marcus to officiate at her funeral but because she had never signed any papers indicating her wishes her children refused to let Rabbi Marcus officiate, and provided Loewy with a paper to sign that referenced that Rabbi Marcus would officiate at the funeral, which plaintiff signed. The document did not mention any monies to be paid.

In September of 2012, plaintiffs received in the mail a copy of a document entitled “The Jewish Burial Form- 6/22/11” which was not the form that Loewy had signed, and which included a paragraph stating an intent to donate a gift of $15,000 to defendant Chabad Lubavithch Cypress. The signature of the form was not Loewy’s and the witness signature was not that of plaintiff Lamy.

It is also alleged that after plaintiffs moved to an assisted living apartment in Pasadena, in August of 2012, Rabbi Marcus visited plaintiffs concerning a donation for a building fund, and pressured Loewy to encourage Lamy to sign a document pledging the sum of $375,000, which money would not be used until plaintiff Lamy passed away. In September of 2012, plaintiffs received by mail a copy of a “Donation Form” that was different from the document Lamy had signed, as it included language Chabad could borrow against the funds, was on Lamy’s purported letterhead, which they had never seen, and the signature of defendant Howard B. Zisblat was on the form. As soon as plaintiffs realized, after seeing the altered documents, that they had been tricked into signing which they never would have signed had they understood the implications, plaintiffs suffered acute emotional distress.

On June 10, 2013, the court, Judge Milton presiding, heard an application for injunctive relief filed by plaintiffs, which was granted, and defendants were enjoined from pledging, assigning, enforcing or otherwise using the purported Jewish Burial Form-6/22/2011 signed by Loewy, or the purported donation form signed by Lamy.

On October 21, 2013, the matter was granted preferential trial setting due to the age of both plaintiffs.

The matter was ordered to mediation to be completed by a return date of July 24, 2014.

ANALYSIS:
Under CCP section 372:
“(a) When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, incompetent person, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. The guardian or conservator of the estate or guardian ad litem so appearing for any minor, incompetent person, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. Any money or other property to be paid or delivered pursuant to the order or judgment for the benefit of a minor, incompetent person, or person for whom a conservator has been appointed shall be paid and delivered as provided in Chapter 4 (commencing with Section 3600) of Part 8 of Division 4 of the Probate Code.

Where reference is made in this section to “incompetent person,” such reference shall be deemed to include “a person for whom a conservator may be appointed.”

CCP section 373, governing the appointment procedure for appointment of a guardian ad litem, provides, in pertinent part.
“When a guardian ad litem is appointed, he or she shall be appointed as follows:
…
(c) If an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding, or by the court on its own motion.”

The persons “for whom a conservator may be appointed,” referenced in CCP section 372, are set forth at Probate Code section 1801, as follows:
“(a) A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, except as provided for the person as described in subdivision (b) or (c) of Section 1828.5.

(b) A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence, except as provided for that person as described in subdivision (b) or (c) of Section 1828.5. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.

(c) A conservator of the person and estate may be appointed for a person described in subdivisions (a) and (b).”

It is also held that an individual can be deemed incompetent for purposes of a dependency hearing when “a parent is unable to understand the consequences of the proceeding and is unable to assist in the preparation of his or her case.” In re Daniel S. (2004) 115 Cal.App.4th 903, 913.

Here, the moving papers argue that plaintiff Mary Lamy is incompetent based on the following:
1) Statements by counsel for plaintiffs to counsel for defendants that Lamy is “incompetent.” [See Rotert Decl., para. 14]. Counsel for plaintiffs denies that she ever made such a statement. [Sheinkipf Decl., para. 2].

2) A letter from counsel for plaintiff concerning deposing Lamy. This letter states that “the mental and physical health of Plaintiff Mary W. Lamy continues to rapidly decline and is precarious enough to preclude her ability to be deposed.” [Ex. A].

3) A letter from Ross M. Strickland indicating that he is attorney in fact for Lamy pursuant to a durable power of attorney. This letter is dated June 23, 2014, and states, in pertinent part, “The Durable Power of Attorney is expressly not affected by any subsequent disability or incapacity of Ms. Lamy,” suggesting she is not currently incapacitated. The letter states, “Ms. Lamy is, at present, under hospice care in a highly weakened and fragile condition, and I have been advised by Ms. Lamy’s health care providers that anything which might induce stress is to be avoided. I am further advised by Ms. Lamy’s health care providers that it would be highly detrimental to her health to participate in a trial, deposition, or mediation.”

This appears to be evidence suggesting that Lamy is ill or that it is not advisable for her in her physical condition to participate in the rigors of trial and pretrial activities, but does not provide any evidence, such as a physician’s report, responses to discovery, or some other direct indication, that plaintiff is incompetent and so needs a guardian ad litem. The motion is therefore denied.

Another current aspect of this dispute is whether plaintiff needs to appear at mediation, or whether her attorney can accept the authority to settle the matter from plaintiff’s attorney in fact pursuant to the Durable Power of Attorney, and be considered to be performing both functions. It is not clear why plaintiff has not filed a motion seeking to be relieved from having to personally appear at mediation.

Under CRC Rule 3.894:
“ (1) All parties and attorneys of record must attend all mediation sessions in person unless excused or permitted to attend by telephone as provided in (3). If a party is not a natural person, a representative of that party with authority to resolve the dispute or, in the case of a governmental entity that requires an agreement to be approved by an elected official or a legislative body, a representative with authority to recommend such agreement, must attend all mediation sessions in person, unless excused or permitted to attend by telephone as provided in (3).

(2) If any party is insured under a policy of insurance that provides or may provide coverage for a claim that is a subject of the action, a representative of the insurer with authority to settle or recommend settlement of the claim must attend all mediation sessions in person, unless excused or permitted to attend by telephone as provided in (3).

(3) The mediator may excuse a party, attorney, or representative from the requirement to attend a mediation session under (1) or (2) or permit attendance by telephone. The party, attorney, or representative who is excused or permitted to attend by telephone must promptly send a letter or an electronic communication to the mediator and to all parties confirming the excuse or permission.

(4) Each party may have counsel present at all mediation sessions that concern the party.”

Here, plaintiff is required to attend in person, in addition to her attorney of record attending. It may be that she would prefer to have a GAL appointed to appear for her. (Under CCP section 372, the “guardian ad litem…appearing for any…incompetent person…shall have the power, with the approval of the court in which the action or proceeding is pending, to compromise the same…”). In the alternative, plaintiff may seek to be excused from attendance by the mediator.