# J.K.J. v. City of San Diego

> District Court, S.D. California · November 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10080020

## Case

- **Court:** District Court, S.D. California
- **Decided:** November 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 J.K.J., individually, and successor in Case No.: 19-CV-2123-CAB-RBB
interest to the Deceased, ALEAH
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JENKINS, by and through his guardian- ORDER REGARDING PETITION
13 ad-litem, JEREMY HILLYER, FOR APPOINTMENT OF
GUARDIAN AD LITEM
14 Plaintiff,

15 v.
[Doc. No. 3]
16 CITY OF SAN DIEGO et al.,
17 Defendants.
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19 This matter is before the Court on a petition by Jeremy Hillyer to be appointed as
20 guardian ad litem for minor plaintiff J.K.J. As one district court explained:
21 [A] guardian ad litem is not a general guardian. See, e.g., Bacon v. Mandell,
No. 10–5506, 2012 WL 4105088, at *14 n. 21 (D.N.J. Sept. 14, 2012). A
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general guardian is “[a] guardian who has general care and control of the
23 ward’s person and estate.” Black’s Law Dictionary (10th ed. 2014). A
guardian ad litem, on the other hand, is “[a] guardian, [usually] a lawyer,
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appointed by the court to appear in a lawsuit on behalf of an incompetent or
25 minor party.” Id. “Ad litem” means “[f]or the purposes of the suit; pending
the suit.” Id.; cf., e.g., Brown v. Alexander, No. 13–01451, 2015 WL 1744331,
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at *7 (N.D.Cal. Apr. 15, 2015) (“[T]he rules permitting a court to appoint a
27 guardian ad litem exist for precisely the situation in which the child’s interests
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1 are best served if he or she is represented by someone other than a custodial
parent or other general guardian.”).
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AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1051-52 (E.D. Cal. 2015). The
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appointment of a guardian ad litem, therefore, “is more than a mere formalism.” Id.
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(quoting United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cty.,
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State of Wash., 795 F.2d 796, 805 (9th Cir. 1986)). The cursory petition currently before
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the court, meanwhile, treats it as such and is therefore denied.
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The sole grounds stated in the petition for Mr. Hillyer’s appointment are that he is
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J.K.J.’s father, is a resident of San Diego County, and is a responsible adult. Conspicuously
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absent from the petition is any supporting evidence such as, without limitation, a
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declaration from Hillyer supporting these statements, or any indication in the petition itself
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that Hillyer actually has custody of J.K.J. or plays any other role in J.K.J.’s life. The mere
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fact that Hillyer is J.K.J.’s biological father (assuming that to be the case in the absence of
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any evidence to the contrary) is not, without more, enough for the Court to find that he is
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qualified to be J.K.J.’s guardian ad litem. Indeed, the allegations in the complaint raise the
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prospect that Hillyer, though not himself a party to this lawsuit, conceivably could have a
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conflict of interest with J.K.J. depending on Hillyer’s relationship with the decedent at the
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time of her death, which is not clear from the complaint or petition. See generally J. M. v.
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Liberty Union High Sch. Dist., No. 16-CV-05225-LB, 2016 WL 4942999, at *1 (N.D. Cal.
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Sept. 16, 2016) (“[I]f the parent has an actual or potential conflict of interest with his [or
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her] child, the parent has no right to control or influence the child’s litigation.”) (citation
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omitted). In any event, the Court lacks sufficient information to determine whether Hillyer
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would be an appropriate guardian ad litem for J.K.J. in this case.
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Moreover, if Hillyer does have custody of and in fact cares for J.K.J.’s needs, it is
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unclear why it would be necessary to appoint Mr. Hillyer as guardian ad litem because he
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therefore would be J.K.J.’s general guardian and could sue on J.K.J.’s behalf under Federal
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Rule of Civil Procedure 17(c)(1)(A). See Doe ex rel. Sisco v. Weed Union Elementary Sch.
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Dist., No. 2:13-CV-01145-GEB, 2013 WL 2666024, at *1 (E.D. Cal. June 12, 2013)
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1 || (holding that parents’ application for appointment as guardian ad litem was unnecessary,
2 || noting that “Rule 17(c)(1)(A) permits a ‘general guardian’ to sue in federal court on behalf
3 ||of a minor, and a parent is a guardian who may so sue.”) (internal quotation marks and
4 citation omitted); see also Yeager, 143 F. Supp. 3d at 1051-52.
5 Accordingly, the Petition to appoint Jeremy Hillyer as the guardian ad litem for
6 || Plaintiff J.K.J. is DENIED WITHOUT PREJUDICE. On or before December 5, 2019,
7 ||counsel for Plaintiff must either: (1) re-file a petition for appointment of Mr. Hillyer or
8 another appropriate adult as guardian ad litem for J.K.J., including sufficient information
9 ||and evidence for the Court to determine the propriety of such an appointment; or (2) file
10 ||sufficient evidence demonstrating that Mr. Hillyer is J.K.J.’s general guardian and
11 |/therefore is authorized to sue on J.K.J.’s behalf under Federal Rule of Civil Procedure
12 17(c)(1)(A).
13 It is SO ORDERED.
14 ||Dated: November 26, 2019 (GR
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Hon. Cathy Ann Bencivengo
16 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080020. Public record. Not legal advice.