Julie Westerfield, et al. v. Jordana Snider, et al

Case Number

24CV00431

Case Type

Hearing Date / Time

Wed, 06/05/2024 - 10:00

Nature of Proceedings

Defendants’ Motion To Reconsider Appointment Of Thomas “Gerry” Westerfield As Guardian Ad Litem

Tentative Ruling

For Plaintiff Julie Westerfield: Brant K. Berglund, John J. Thyne III, Thyne Taylor Fox Howard, LLP

For Defendant Jordana Snider: Justin M. Alvarez, David A. Shaneyfelt, The Alvarez Firm, A Law Corporation

RULING

For all reasons discussed herein, the motion of Defendants to reconsider the appointment of Thomas “Gerry” Westerfield as guardian ad litem for Plaintiff Julie Westerfield is granted. On reconsideration, the Court reaffirms its April 18, 2024, order appointing Tomas “Gerry” Westerfield as guardian ad litem for Plaintiff Julie Westerfield.

Background

On January 26, 2024, Plaintiffs Julie aka Julia Westerfield (Julie) and Thomas “Gerry” Westerfield (Thomas) (collectively, Plaintiffs) filed a verified complaint in this matter against Defendants Jordana Snider (Snider) and Brian Chossek (Chossek) (collectively, Defendants). (Note: Due to common familial surnames, the Court will refer to Plaintiffs by their first names. No disrespect is intended.) As alleged in the complaint:

Snider, a licensed real estate broker, ingratiated herself to the family of Julie who is 77 years old, suffers from cognitive impairment and Alzheimer’s disease, and is susceptible to influence by Snider. In 2022, Snider, who was 51 years old at the time, had herself adopted by Julie and exerted undue influence to convince Julie to convey real property located at 1002 N. Signal Street in Ojai, California (the property), at no cost to Snider and while claiming a “parent to child” exclusion. The property is worth at least $2,200,000. Snider has also alienated Julie on various occasions. In addition, Snider had Julie write a check for $300,000 that bounced, then another check for $200,000 that cleared. Snider returned these funds when her “scam” was discovered and agreed to re-convey the property to Julie but now refuses to do so. (See Compl., ¶¶ 4, 6 [overview], 7, 12, 20, 46.)

In the complaint, Plaintiffs allege eight causes of action: (1) undue influence (against Snider); (2) financial abuse of an elder (against Snider); (3) financial abuse of an elder who lacks capacity under Welfare and Institutions Code section 15657.6 (against Snider); (4) breach of fiduciary duty (against Snider); (5) constructive fraud (against Snider); (6) quiet title (against Snider and Chossek); (7) mistake (against Snider); and (8) unjust enrichment-restitution (against Snider).

On January 26, 2024, Plaintiffs filed a notice of related case identifying the following as related to the present action: case number 24FL00004 entitled Jordana Snider v. Chris Westerfield; case number 24CV00027 entitled Julia Westerfield v. Jordana Brie Snider; and case number 24CV00031 entitled Julia Westerfield v. Brian Chossek.

On April 9, 2024, Defendants filed a demurrer to each cause of action alleged in the complaint (the demurrer). On the same date, Defendants filed a motion to strike items 2 and 4 of the prayer for relief alleged in the complaint (the motion to strike).

On April 16, 2024, Thomas, who is Julie’s spouse, filed an application (the application) requesting the Court appoint him as guardian ad litem for Julie on the grounds that Julie “has been diagnosed with Alzheimer’s disease and ‘has had progressive difficulty with cognitive function’.” (Apr. 16, 2024, Appl., ¶ 4 & Exh. A.) On April 18, 2024, the Court issued an order granting the application and appointing Thomas guardian ad litem for Julie (the Order).

On April 22, 2024, Defendants filed an objection to the application (the objection) on the grounds that Thomas and his attorneys have a conflict of interest in representing Julie and that Julie’s most recent power of attorney gives Snider and not Thomas authority to act on this lawsuit.

On April 23, 2023, Defendants filed a motion under Code of Civil Procedure section 1008 (the motion or present motion) requesting that the Court reconsider the Order for all reasons stated in the objection. In support of the motion, Defendants submit the declaration of their counsel, David A. Shaneyfelt, who declares that Defendants did not know of and were not served with the Order until after they filed their objection. (Shaneyfelt Decl., ¶ 5.) Julie opposes the motion.

On May 2, 2024, Julie filed a first amended complaint (the FAC) alleging eight causes of action against Snider and removing Thomas as a Plaintiff and Chossek as a Defendant. On May 10, 2024, Defendants filed notices of withdrawal of their demurrer and motion to strike.

Analysis

“When an application for an order has been made to a judge, or to a Court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or Court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

Notwithstanding whether there exist new or different facts or circumstances claimed by Defendants for purposes of Code of Civil Procedure section 1008 (see Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500), the Court notes that the appointment of a guardian ad litem is a routine procedure which is often undertaken on an ex parte basis. (Alex R. v. Superior Court (2016) 248 Cal.App.4th 1, 12.) Under these routine procedures, the Order was entered two days after the application was filed without considering the information and evidence offered in the motion. It also appears that Defendants could not, with reasonable diligence, produce the information offered in the objection before the Court entered the Order. For these reasons, the Court will exercise its inherent authority to grant the motion and to consider the merits of the grounds alleged in the motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; see also Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1077-1078; In re Marriage of Spector (2018) 24 Cal.App.5th 201, 214 In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303-1304.)

Defendants contend that Thomas has a conflict of interest because he has also filed a complaint against Defendants in this action. Defendants further assert that Julie’s deposition testimony, which was offered in support of a motion to terminate a temporary restraining order filed in related case number 24CV00027, indicates that Julie disagrees with the allegations made by Thomas in this action. (See Obj., Exh. A.) In addition, Defendants argue that because Julie executed a “Durable Power of Attorney for Financial Matters” (the POA) in favor of Snider, a copy of which is attached to the objection as Exhibit B, Snider is Julie’s attorney in fact and should be determining Julie’s litigation interests and not Thomas. Defendants also contend that Julie lacked capacity to authorize the filing of the complaint in this matter.

Under Code of Civil Procedure section 372, if a party to an action lacks legal capacity to make decisions, “that person shall appear either by a guardian or conservator of the estate or by guardian ad litem appointed by the Court in which the action or proceeding is pending, or by a judge thereof, in each case.” (Code Civ. Proc., § 372, subd. (a)(1).) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise stated.) “Guardian ad litem is not a party to an action, but merely the representative of record of a party.” (In re Cochems’ Estate (1952) 110 Cal.App.2d 27, 29, original italics.) When there exists no conflict of interest, the appointment of a guardian ad litem is made on application and “involves little exercise of discretion.” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 964, fn. 5; Code Civ. Proc., § 373, subd. (c).)

“[T]he appointment of a guardian ad litem is subject to ongoing Court supervision and the removal of a guardian ad litem, who functions partly as an officer of the Court, is a matter within the Court’s control to be exercised as part of its inherent powers. [Citations.] The role of the guardian ad litem is to protect the incompetent person’s rights in the action, to control the litigation, to compromise or settle, to direct the procedural steps, and make stipulations. [Citations.] The powers of a guardian ad litem are thus subject to both the fiduciary duties owed to the incompetent person and the requirement that Court approval be obtained for certain acts. [Citation.] ‘Like any other officer of the Court …, guardian ad litem is subject to Court supervision. Should guardian ad litem take an action inimical to the legitimate interests of the [incompetent person], the Court retains the supervisory authority to rescind or modify the action taken.’ [Citation.]” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 643-644 (Golin).)

In support of the application, Thomas submitted medical records dated February 7, 2024, which describe Julie’s condition. (Appl., Exh. A.) The medical records offered by Thomas include a determination by Julie’s physician, Robert Byers, M.D. (Dr. Byers), regarding Julie’s cognitive abilities in the context of the present matter. (Appl., Exh. A.) The medical records attached to the application indicate that Julie has Alzheimer’s disease which is causing Julie to suffer cognitive impairment and to “have a significant amount of difficulty and understanding and recollecting details.” (Id. at p. 3.)

Defendants do not object to or otherwise challenge the medical records offered in support of the application or Dr. Byers’ statements. Defendants also do not dispute that, for purposes of section 372, Julie lacks legal capacity. Further, Defendants offer no information or evidence demonstrate that Julie’s capacity has changed since the filing of the application by Thomas. For these reasons, Defendants have not shown that Julie has legal capacity to make decisions with respect to the present action.

To support the motion, Defendants offer testimony given by Julie during her deposition on March 21, 2024, to show that Julie purportedly disagrees with allegations made against Snider in this action and does not consent to the prosecution of the present action against Snider. Considering the circumstances further discussed above with respect to Julie’s legal capacity which Defendants do not dispute, it is unclear on what grounds Defendants contend the Court may rely on Julie’s recollection of events during her deposition to demonstrate sufficient grounds for the removal of Thomas as her guardian ad litem. Moreover, nothing in the deposition testimony offered by Defendants demonstrates that Julie objects to the appointment of Thomas as her guardian ad litem in this matter notwithstanding the substance of Julie’s testimony regarding her recollection of any theft by Snider or other matters.

Defendants also offer no evidence or information sufficient to demonstrate that Thomas has an interest in this litigation that is detrimental to Julie or that there exists any history of conflict between Thomas and Julie with respect to the present action warranting the removal of Thomas as guardian ad litem. (See, e.g., Golin, supra, 190 Cal.App.4th at pp. 622-623 [discussing evidence of conflict in context of conservatorship proceeding].) For example, Thomas is not a Plaintiff in this matter with respect to the operative FAC. (See, e.g., In re Emery’s Estate (1962) 199 Cal.App.2d 22, 25-26 [removal of guardian ad litem was supported by evidence demonstrating conflict between the interests of the guardian ad litem and the incompetent person that would “seriously” affect guardian’s duties].)There also exists no evidence or other information to show that Thomas has acted in a manner which demonstrates that he cannot, or has failed to adequately or effectively, protect the interests of Julie in this action.

With respect to the POA, its express terms do not provide that Snider is the sole person who may maintain litigation on Julie’s behalf as Defendants suggest. The terms of the POA further show that, though Julie “nominated” Snider to be considered for appointment as guardian ad litem, Julie did not agree that only Snider may be appointed as her guardian ad litem in this matter or nor do any provisions of the POA prohibit the appointment of any other person. (See Obj., Exh. B at p. 5, paras. 8(f) & 13.)

In addition, under Probate Code section 4155, “the authority of an attorney-in-fact under a nondurable power of attorney is terminated by the incapacity of the principal to contract.” (Prob. Code, § 4155, subd. (a).) Considering that Defendants do not dispute that Julie lacks legal capacity and notwithstanding the title of the POA, Defendants present no reasoned argument showing that the POA meets the requirements for “durability” under Probate Code section 4124. (Prob. Code, §§ 4018; 4124.) For this reason, there exists questions regarding whether any authority granted to Snider under the POA was terminated by any incapacity of Julie.

The Court further notes that the FAC includes allegations that Julie was diagnosed with cognitive impairment and pre-Alzheimer’s disease on August 1, 2022. (FAC, ¶ 11.) As the POA was executed by Julie on May 26, 2023, there also appear to exist questions in this litigation regarding whether Julie had the capacity to execute the POA as provided in Probate Code section 4120. (See Algo-Heyres v. Oxnard Manor LP (2023) 88 Cal.App.5th 1064, 1071-1072 [discussion of substantial evidence supporting trial Court’s findings of lack of capacity to contract of skilled nursing facility resident]; Prob. Code, § 812.) The FAC also includes allegations that the POA was revoked on January 18, 2024. (FAC, ¶ 43.)

Though the Court is not in a procedurally appropriate position to determine the issues further described above and offers no advisory opinion regarding the questions that may exist in this litigation as further discussed above, the Court has considered all the additional evidence and information offered by Defendants in connection with the present motion and objection. Having considered all the evidence and information presented by the parties including information and evidence offered by Defendants, the Court will again grant the application and reaffirm the Order for all reasons discussed above.

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