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Court of Appeal:
Judge Erred in Imposing Monetary Sanction On Guardian at Litem in Family Law Case
By a MetNews Staff Writer
(News and Analysis)
Monetary sanctions were improperly imposed on a woman who, representing the interests of her niece, a minor, brought an unsuccessful action for a domestic violence restraining order against the child’s father, Div. One of the Fourth District Court of Appeal has held, declaring that the aunt was not an actual party to the proceeding and was therefore impervious to penalties.
Natasha DiNardo acted as guardian ad item (abbreviated by the Court of Appeal as “GAL”), for A.A., now age 12. The aunt was prompted to assume that role after viewing videotapes of monitored visits the child had with her mother (DiNardo’s sister) who was divorced from the father in 2018.
The tapes showed A.A. telling tales of not having adequate clothing or food, having no toys, and never being taken to the zoo by her father. All of that was shown by evidence at the trial to be untrue, with those and other fabrications apparently stemming from the child’s desire to be with her mother who had been denied custody.
The child’s allegations of brutality on the part of the father, Kamal Assaf, were unsubstantiated and were found by San Diego Superior Court Judge Marcella O. McLaughlin to lack credibility. McLaughlin declined to issue a restraining order and ordered DiNardo to pay Assaf $5,000, in installments of $150 per month, as a sanction, partially reimbursing him for attorney fees he had incurred.
Do’s Opinion
In an unpublished opinion filed Tuesday, Justice Truc T. Do said that under Family Code §6344, as it then read, “a trial court may award attorney fees to the prevailing party in a DVRO proceeding.” That, however, did not authorize the order to Assaf, she wrote, explaining:
“The trial court was not permitted to enter a judgment of attorney fees against GAL because she was not a party to the restraining order proceeding….The trial court’s order purports to enter a judgment for attorney fees against GAL, who is acting as a representative of A.A.’s interests as her guardian ad litem and not a party to the action. The judgment for attorney fees against GAL was therefore unauthorized and we conclude the judgment is void.”
In support of her proposition, Do cited the 1993 Court of Appeal decision by her division in In re Christina B. She quoted the court as saying:
“A guardian ad litem is not a party to the action, but merely a party’s representative.”
Limitation on Powers
That case dealt with limitations on a guardian ad litem’s powers, not liability for sanctions. It was held that a guardian ad litem lacked the power to waive a jury trial in light of the juvenile’s opposition.
The court explained in Christina B.:
“[A] guardian ad litem’s role is more than an attorney’s but less than a party’s. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian’s charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.”
Do did not explain why, given that sanctions may be imposed on an attorney, whose authority in conducting litigation is less than that of a guardian ad litem, they may not be imposed on a guardian ad litem.
2002 Decision
She also cited the 2002 Court of Appeal decision in First Security Bank of California, N.A. v. Paquet handed down by the Fourth District’s Div. Two. That case had nothing to do with guardian ad litems.
In finding that “[i]n a shareholder derivative action, the cause of action being asserted belongs to the corporation, not to the plaintiff shareholder,” the opinion analogizes this to cases pursued by guardians ad litem. It quotes the court in the 1952 case of Estate of Cochems as saying, with an addition by it in words in brackets:
“[A] judgment may not be rendered for or against a guardian ad litem, but only for or against the party he [or she] represents.”
In that case, the respondent contended that the appeal was infirm because it was brought in the names of the minors, not the guardian ad litem. The Court of Appeal responded:
“A guardian ad litem acts not in his own behalf when he seeks to have it established that the minors he represents are entitled to share in an estate, but strictly in their behalf and what is more as a representative of the court….A guardian ad litem is not a party to an action, but merely the representative of record of a party.”
Do did not provide enlightenment as to why an attorney—who is also “merely the representative of record of a party”—is vulnerable to imposition of sanctions, but a guardian ad litem is not.
Further Question
The justice also did not explain how DiNardo’s protest to the imposition of a sanction on her was properly acted upon. The appellant was A.A., challenging the denial of a restraining order.
Do wrote:
“Although GAL does not set forth a separate argument challenging the trial court’s award of attorney fees, or legal authority to support her claim, she states, ‘we appeal the award of $5,000 in attorney fees against GAL to [Father].’ We review the determination of the legal basis for an award of attorney fees de novo.”
Yet, contentions unsupported by a citation to authorities are routinely disregarded as being forfeited.
It is assumed that that if Assaf petitions for a rehearing, it will be granted, in conformity with Government Code §68081, which provides:
“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”
Current Statute
Do remarked in a footnote:
“Section 6344 was amended, effective January 1, 2023, to require the court to issue an order for the payment of attorney fees to a prevailing petitioner, and authorize the court to issue an order for the payment of attorney fees to a prevailing respondent if the respondent establishes by a preponderance of the evidence that the petition was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay….The recent amendments to section 6344 do not affect our analysis as the petitioner was not the prevailing party and the award of attorney fees to respondent was not legally authorized as a matter of law.”
In response to A.A.’s appeal from the denial of a restraining order, Do said that the child’s allegations “if believed” would justify such an order, but noted that “after meticulously weighing the totality of the evidence,” McLaughlin “made extensive credibility findings that undermined A.A.’s claims.”
Those findings, she declared, will not be disturbed on appeal.
Third Appeal
Do began her opinion with the observation that the appeal is “the third from this family law case” and “arises from a long, contentious custody battle between” the parents “in what is now a seven-year-old dissolution case.”
In a July 27, 2021 opinion by Do, the court reversed a three-year domestic violence restraining order McLaughlin imposed on the mother, Leila Rhodes, protecting Assaf and the child. Div. One certified the opinion for publication but the California Supreme Court on Nov. 10, 2021, ordered depublication and denied review.
In a Sept, 24, 2021 unpublished opinion, Do found that the orders in issue were moot and that the appeal must be dismissed, nonetheless proceeding to provide a 3,150-word discourse.
Unauthorized Law Practice
In the case decided on Tuesday—A.A. v. K.A., D079506—DiNardo, who is not a lawyer, represented A.A. Do said in a footnote:
“Although not asserted by Father in his responding brief on appeal, we question whether N.D., in her role as guardian ad litem, may proceed in propria persona on appeal without violating the prohibition against the unauthorized practice of law.”
That concern did not arise in connection with DiNardo’s representation of A.A. in the trial court. Do noted that Code of Civil Procedure §374 provides that “a minor under 12 years of age, accompanied by a duly appointed and acting guardian ad litem, shall be permitted to appear in court without counsel for the limited purpose of requesting or opposing a request for...a protective order.”
However, that section makes no reference to representation on appeal and Do pointed to authority saying that, as a general rule, a non-attorney “who represents another person in court proceedings violates the prohibition against unauthorized practice of law.”
Explaining the decision not to bounce the briefs filed by DiNardo, Do said:
“[C]onsidering the age of this matter and the parties’ respective interests in finality, we exercise our discretion to reach the merits of the appeal to promote the ends of justice.”
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