Filed 2/3/15 R.L. v. Taylor CA1/5
                    NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                 DIVISION FIVE


R.L., a Minor, etc., et al.,
         Plaintiffs and Appellants,
                                                                   A141311
v.
KENT TAYLOR et al.,                                                (Contra Costa County
                                                                   Super. Ct. No. MSC12-00901)
         Defendants and Respondents.

         Minor R.L. appeals from the trial court’s order substituting her mother as guardian
ad litem and dismissing her personal injury action. We affirm.
                            I. F ACTUAL AND P ROCEDURAL B ACKGROUND
         In February 2012, five-year-old R.L. was allegedly injured at her mother’s rented
home when an iron gate fell onto her. In April 2012, R.L., acting through her father as
guardian ad litem, filed a lawsuit against her mother’s landlord, Kent Taylor and Kent
Taylor Construction, Inc. (collectively Taylor), alleging negligence and strict liability
causes of action. The complaint alleged that R.L. lived “part-time” with her mother.
Taylor answered the complaint, asserting mother’s and father’s contributory negligence
and assumption of the risk as affirmative defenses.
         In October 2013, R.L.’s mother, represented by Taylor’s trial counsel, filed a
motion seeking to terminate father as guardian ad litem and dismiss the complaint. In
support of the motion, R.L.’s mother submitted a declaration stating that she and R.L.’s
father were divorced, she had recently obtained sole legal and physical custody of R.L.,
and she objected to prosecution of the lawsuit. Specifically, R.L.’s mother stated that she



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did “not believe that [Taylor] was at fault with regard to the fence and the accident” and
did not wish R.L., who was the only witness to the accident, to be subject to trauma from
testifying at trial.
        After opposition and a contested hearing, the trial court granted the motion. The
trial court’s order provides: “The motion to discharge [father] as Guardian Ad Litem for
his daughter . . . and to replace him with [mother], and thereafter to dismiss the case at
[mother’s] request is granted. In addition to all of the pleadings submitted regarding this
mater, the court also relied heavily on the oral presentation made by [mother] at the time
of the hearing in reaching this decision. It is clear that [R.L.’s] parents are involved in a
long standing, high conflict divorce proceeding and custody battle. This matter was filed
over the vocal objections of [mother], who genuinely believes that the added stress
suffered by her daughter caused by this litigation has caused [R.L.] harm. It is
undisputed from the family law records that [mother] currently has sole legal and
physical custody of [R.L.] As such she has the sole right to decide whether to proceed
with this litigation. Motion granted and this case is dismissed without prejudice.” (Italics
added.) R.L. filed a timely notice of appeal.1
                                        II. DISCUSSION
        “A minor who is a party in a lawsuit must appear ‘ “by a guardian ad litem
appointed by the court in which the action or proceeding is pending . . . .” (Code Civ.
Proc., § 372, subd. (a) . . . .)’ [Citations.] If the minor is under 14 years old and is a
plaintiff, ‘the appointment must be made before the summons is issued, upon the
application of . . . a relative or friend of the minor.’ (Code Civ. Proc., § 373, subd. (a)
. . . .) . . . A court has broad discretion in ruling on a guardian ad litem application.
[Citation.] ‘ “In the absence of a conflict of interest . . . , the appointment is usually made


        1 “An order terminating the authority and capacity of a guardian ad litem, standing
alone, is nonappealable. [Citations.]” (Estate of Emery (1962) 199 Cal.App.2d 22, 26,
italics omitted.) But when the trial court incorporates the order of removal in the final
judgment of dismissal, an appeal lies from that dismissal and “the authority of the
guardian ad litem continue[s] for the limited purpose of . . . appeal.” (Ibid., italics
omitted; see also In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219–220.)

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on application only and involves little exercise of discretion.” ’ [Citation.] [¶] The
purpose of a guardian ad litem is to protect the minor’s interests in the litigation.
[Citations.] A guardian ad litem is not a party to the action, but is the party’s
representative and is an officer of the court. [Citations.] . . . ‘ “[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. . . .” ’ Thus, when considering the appropriate guardian ad
litem for a minor plaintiff in a civil lawsuit, the central issue is the appropriate protection
of the minor’s legal right to recover damages or other requested relief.” (Williams v.
Superior Court (2007) 147 Cal.App.4th 36, 46–47.)
       R.L. contends that the trial court “misapplied the law” in removing father as
guardian ad litem and substituting mother. According to R.L., the issue before us is a
question of law, subject to de novo review. Taylor, on the other hand, argues in favor of
the abuse of discretion standard. R.L. is correct that “[m]atters presenting pure questions
of law, not involving the resolution of disputed facts, are subject to the reviewing court ’s
independent or de novo review.” (Diamond Benefits Life Ins. Co. v. Troll (1998)
66 Cal.App.4th 1, 5.) However, this is not such a question. The decision to appoint or
remove a guardian ad litem is within the discretion of the trial court. (Williams v.
Superior Court, supra, 147 Cal.App.4th at p. 47; D.G. v. Superior Court (1979)
100 Cal.App.3d 535, 546; Estate of Emery, supra, 199 Cal.App.2d at p. 26.) “Although
precise definition is difficult, it is generally accepted that the appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all of the
circumstances before it being considered. [Citations.] We have said that when two or
more inferences can reasonably be deduced from the facts, a reviewing court lacks power
to substitute its deductions for those of the trial court. [Citations.]” (In re Marriage of
Connolly (1979) 23 Cal.3d 590, 598, italics added.) However, “ ‘[a] decision “that
transgresses the confines of the applicable principles of law is outside the scope of
discretion” and is an abuse of discretion. [Citation.]’ [Citation.]” (Kayne v. The Grande
Holdings Limited (2011) 198 Cal.App.4th 1470, 1475.)


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       We cannot consider all of the circumstances before the trial court on the guardian
ad litem question because R.L. has not presented a reporter’s transcript, or any substitute,
from the hearing. It is a cardinal rule of appellate review that a judgment or order of the
trial court is presumed correct and prejudicial error must be affirmatively shown.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) And the appellant has the burden
of providing an adequate record for review. (Oliveira v. Kiesler (2012) 206 Cal.App.4th
1349, 1362.) “In the absence of a contrary showing in the record, all presumptions in
favor of the trial court’s action will be made by the appellate court. ‘[I]f any matters
could have been presented to the court below which would have authorized the order
complained of, it will be presumed that such matters were presented.’ [Citations.]”
(Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) “ ‘A necessary corollary to this rule
is that if the record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.’ [Citations.]” (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) The trial court made clear that, in
determining who should serve as guardian ad litem, it relied on mother’s “oral
presentation” at the hearing on the motion. Without a record of that presentation, we are
compelled to affirm. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 185–187 & fn. 3.)
       Moreover, even if we were to agree with R.L. that her appeal does not challenge
the court’s factual determination regarding the appropriate guardian ad litem but merely
challenges “the court’s legal conclusion that because [mother] had sole legal and physical
[custody] she had the sole right to decide whether to proceed with this litigation,” she has
not demonstrated any error. A parent has “the right to determine if and when their child
should bring a civil lawsuit.” (Williams v. Superior Court, supra, 147 Cal.App.4th at
p. 52, relying on Aronson v. Superior Court (1987) 191 Cal.App.3d 294.) R.L. has not
shown that the trial court erred, at the time the case was dismissed, in concluding that
mother—having sole custody and having been substituted as the guardian ad litem—had
the sole right to decide whether to proceed with the litigation. (See Fam. Code, § 3006




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[“ ‘[s]ole legal custody’ means that one parent shall have the right and the responsibility
to make the decisions relating to the health, education, and welfare of a child”].)
                                     III. DISPOSITION
       The judgment is affirmed. Respondents shall recover their costs on appeal.




                                                  _________________________
                                                  BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




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