Plaintiff Riveras Ex Parte Application To Substitute Gaurdian Ad Litem

Motion

Cal. Super. - 5th Dist.June 13, 2016

Th is e - c o p y is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O Jake D. Finkel, Esq. (SBN 293954) LAW OFFICES OF JAKE D. FINKEL, APC. 3470 Wilshire Boulevard, Suite 830 Los Angeles, CA 90010 Telephone: (213)787-7411 Facsimile: (323)916-0521 Jake @lawfinkel.com FILED Merced Superior Court 11/13/2018 10:59 AM Linda Romero Soles Clerk of the Superior Court By: Kathy Wallace, Deputy Attorney for Plaintiff Jennifer Judith Rivera Nunez SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MERCED JENNIFER JUDITH RIVERA NUNEZ, a minor, by and through her Guardian Ad Litem Diafra Rivera Cruz, Plaintiffs, v. AUTOBUSES COORDINADOS USA, INC.; MARIO DAVID VASQUEZ; AND DOES 1 through 100, inclusive, and each of them Defendants. AND CONSOLIDATED ACTIONS nn nn nn nn nn nn Lead Case No.: 16CV-02493 (Consolidated with Case Nos. 16CV-02569, 16CV- 02876, and 16CV-03274) PLAINTIFF’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF’S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JAKE D. FINKEL, ESQ. IN SUPPORT THEREOF; [PROPOSED] ORDER Hearing Date: November 14, 2018 Time: 1:15 p.m. Dept: 8 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 14, 2018, or as soon thereafter as the matter may be heard, in Department 8 of the above entitled Court located at 627 W. 21% street, 1 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O Merced, CA 95340 Plaintiff Jennifer Judith Rivera Nunez, a minor, (hereinafter “Plaintiff”) by and through her attorneys of record, will move this court for an Ex Parte Order to substitute Plaintiff’s biological mother America Nunez as Plaintiff’s Guardian Ad Litem in place of Diafra Rivera Cruz. This ex parte application is unopposed and justified for the following reasons: 1. Prior to the time this action was filed, The Law Office of Jake D. Finkel, APC, was retained by Diafra Rivera Cruz, to represent the interests of her niece, Jennifer Judith Rivera Nunez, a minor, who was involved in a tragic vehicle accident and sustained bodily injury. 2. Shortly after the incident, Plaintiff began living with her aunt, Diafra Rivera Cruz, in Washington, United States. However, due to the permanent trauma and constant care Plaintiff required as a result of the subject accident, Plaintiff went back to Nayarit, Mexico to be with her biological parents. Therefore, Ms. Cruz’s is no longer the person best fit to represent the interests of the minor Plaintiff. 3. On November 6th, 2018, the parties involved in this lawsuit resolved the matter through a mediation process that took place in Fresno, CA. 4. Given the fact that the Plaintiff now lives in Mexico and is under the care of her biological parents, it is in the minor’s best interest to be represented by her mother, America Nunez, and have her as a guardian and advocate for the minor’s best interest. 5. All parties have stipulated to substitute Plaintiff’s biological mother, America Nunez, as Guardian Ad Litem in place of Diafra Rivera Cruz, and this ex parte application is unopposed, which is a factor to consider for an ex parte application pursuant to California Rules of Court, Rule 3.1204). 6. As delineated above, there would be irreparable harm and immediate danger should the request not be granted, which is the standard for granting an ex parte application under California Rules of Court, Rule 3.1202(c). Given the foregoing, Plaintiff moves the Court to substitute Plaintiff’s biological mother, America Nunez, in place of the current Guardian Ad Litem Diafra Rivera Cruz. 2 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O This motion is based on this Notice, Declaration of Jake D. Finkel, Esq., the Memorandum of Points and Authorities, upon any evidence at the hearing, and on the pleadings, records, and files in this action. Dated: November 13, 2018 LAW OFFICES OF JAKE D. FINKEL Jake D. Finkel, Esq Attorney for Plaintiff JENNIFER JUDITH RIVERA NUNEZ 3 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O MEMORANDUM OF POINTS AND AUTHORITIES I. UPON A SHOWING OF GOOD CAUSE AND IRREPARABLE HARM THE COURT MAY GRANT AN EX PARTE MOTION. This Court has inherent power to grant the Plaintiff’s ex parte application to substitute Plaintiff's biological mother, America Nunez, in place of Diafra Rivera Cruz. A minor who is a party in a lawsuit must appear “‘by Guardian Ad Litem appointed by the court in which the action or proceeding is pending....” (Code Civ. Proc., § 372, subd. (a).)” The appointment may be made on an ex parte application. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149, 33 Cal.Rptr.2d 46.) A court has broad discretion in ruling on a Guardian Ad Litem application. (In re Emily R., supra, at p. 1356, 96 Cal.Rptr.2d 285.) ““In the absence of a conflict of interest ..., the appointment i is usually made on application only and involves little exercise of discretion.” ” (In re Marriage of Caballero, supra, at p. 1149, 33 Cal.Rptr.2d 46.) A. Despite the Efforts of Moving Party and Counsel, the Current Guardian Ad Litem Is Unfit to Represent the Best Interests of the Minor Plaintiff, Thereby Resulting in Irreparable Harm If the Substitution is Not Granted. “Ex parte applications are a form of emergency relief that will only be granted upon an adequate showing of good cause or irreparable injury to the party seeking relief.” K. Clark v. Time Warner Cable, 2007 WL 1334965 at 1 (C.D.Cal. May 3, 2007) (citing Mission Power Eng'g Co. v. Continental Cas. Co., 883 F.Supp. 488, 492 (C.D.Cal.1995)). “‘[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.” ” (Ibid.; accord In re Josiah Z., supra, 36 Cal.4th at p. 678, 31 Cal.Rptr.3d 472, 115 P.3d 1133.) 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. The instant matter falls within the above. Denying this request would result in irreparable harm to the minor Plaintiff because Ms. Cruz is no longer the person best fit to fill the role of 4 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O Guardian Ad Litem and to ensure protection of the minor’s fundamental rights. Specifically, the minor Plaintiff’s right to recover damages will be affected if the substitution is not granted. Currently the minor Plaintiff’s biological mother America Nunez is in physical custody of the minor, she is in the best position to protect her daughter’s interests and to ensure that the dispute will be resolved fairly and expeditiously to the benefit of her daughter. However, if the substitution is not granted, Plaintiff’s right to recover damages and to have her interests fairly and accurately represented will be effected, thereby causing irreparable harm to the minor Plaintiff. Thus, the minor Plaintiff will suffer irreparable harm if her biological mother is not substituted for Ms. Cruz as guardian ad litem. B. Good Cause Exists to Grant a Substitution of the Currently Appointed Guardian Ad Litem. As set forth in this motion and the Declaration attached herein, good causes exists to support this order to substitute the minor Plaintiff’s biological mother, America Nunez, as guardian ad litem in place of Diafra Rivera Cruz, who was initially appointed, because she had physical custody of the minor. Currently, the minor Plaintiff lives in Nayarit, Mexico with her biological parents. Therefore, Ms. Cruz’s is no longer the person best fit to represent the interests of the minor Plaintiff. Further, not having a fit Guardian Ad Litem who is able to fully represent the minor Plaintiff’s fundamental interests is sufficiently good cause to have America Nunez substituted as Guardian Ad Litem in place of Ms. Cruz. The parties have already agreed to the substitution of the Guardian Ad Litem. As such, denial of this motion to substitute Plaintiff’s biological mother, America Nunez, as Guardian Ad Litem in place of Diafra Rivera Cruz will greatly prejudice Plaintiff, but the granting of this motion will not prejudice any other party. Accordingly, the interests of justice, as well as judicial economy, are served by the granting of this motion to substitute Plaintiff’s biological mother, America Nunez, as Guardian Ad Litem in place of Diafra Rivera Cruz. 1" 1" 5 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O II. AN EX PARTE ORDER MAY BE GRANTED ON A SHOWING OF GOOD CAUSE AND BY APPLICATION California Rules of Court, Rule 3.1203, in pertinent part, provides: “(a) Time of notice A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice." Further, California Rules of Court, Rule 3.1204, in pertinent part, states: “(c) Affirmative factual showing required An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” III. CONCLUSION Based upon the foregoing, it is respectfully requested that this court grant Plaintiff’s unopposed ex parte application to substitute Plaintiffs biological mother, America Nunez, as Guardian Ad Litem in place of Diafra Rivera Cruz. Dated: November 13, 2018 LAW OFFICES OF JAKE D. FINKEL Jake D. Finkel, Esq Attorney for Plaintiff JENNIFER JUDITH RIVERA NUNEZ 6 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O DECLARATION OF JAKE D. FINKEL I, Jake Daniel Finkel declare and state as follows: 1. I am an attorney licensed to practice law before all of the courts of the State of California. I am the managing attorney of Law Office of Jake D. Finkel, APC, and counsel of record for Plaintiff herein. I know all of the following facts of my own personal knowledge, except where stated on information and belief, and if called upon and sworn as a witness, I could and would testify thereto. 2; I am counsel for Plaintiff Jennifer Judith Rivera Nunez (“Plaintiff”). 3. This case involves a tragic bus crash where Plaintiff, a minor, sustained bodily injury and severe emotional trauma. My firm was retained by Plaintiff’s aunt, Diafra Rivera Cruz, to represent her niece in this personal injury claim, given the fact that Plaintiff is a minor and was living in United Stated at the time of the accident. 4. Due to her lifelong trauma and the need for constant care and emotional support, minor Plaintiff moved back to Mexico to be with her biological parents, in the hope that being cared by her biological parents will heal the emotional and psychological scars caused by this traumatic accident. 5. On November 6, 2018, the parties involved in this lawsuit reached a settlement and given the fact that minor Plaintiff currently lives in Nayarit, Mexico with her biological parents, it is the minor’s best interest to be represented by her mother, America Nunez, and have her as a guardian and advocate of her interests. 6. Therefore, since the minor Plaintiff’s biological mother, America Nunez, has Plaintiff’s physical custody and control, Plaintiff’s Counsel requests this Court to substitute the minor Plaintiff’s biological mother, America Nunez, in the place of Diafra Rivera Cruz. 7. All parties have stipulated to substitute Plaintiff's biological mother, America Nunez, as guardian ad litem in the place of Diafra Rivera Cruz. Whether all parties have stipulated as an ex parte application is a factor to consider pursuant to California Rules of Court, Rule 3.1203 and 3.1204. Attached as “Exhibit 1” is a true and correct copy of the email stipulation to substitute 7 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O Jennifer Rivera’s biological mother, America Nunez, as the guardian ad litem in place of Diafra Rivera Cruz and advance notice of the ex parte appearance. 8. As delineated above, there would be irreparable harm and immediate danger should the substitution of the guardian ad litem not be granted, which is the standard for granting an ex parte application under California Rules of Court, Rule 3.1202(c). 9. Given the foregoing, I am moving this Court to substitute Jennifer Judith Rivera Nunez’s biological mother, America Nunez, as the guardian ad litem in place of Diafra Rivera Cruz. Ex parte notice: 10. Notice of this Ex Parte was given via electronic e-mail to Defendants’ counsels, Brian Howard Gunn for Autobuses Coordinados U.S.A, Inc. and Mario David Vasquez; and Kenneth B. Arthofer, Counsel for La Nueva Estrella, LLC. 11. Attached hereto as “Exhibit 2” and incorporated herein by this reference are true and correct copies of these correspondences. 12. No response has been received by any of the notified parties. No objection is anticipated. 13. I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of California. Executed on this 13® day of November, 2018, at Los Angeles, California. GZk JAKE DANIEL FINKEL, ESQ., declarant 8 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ (0ST89D9) PJ0d31 U N O [ e d o SL SI Adod-2 SIy L Exhibit 1 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 11/13/2018 Gmail - RE: Autobuses Coordinados; Mediation Confirmation i W Gmail Jake Finkel RE: Autobuses Coordinados; Mediation Confirmation Jake Finkel Thu, Nov 8, 2018 at 4:55 PM To: James Cc: Doug Gessell , quintin@shammamlaw.com, Melody Parman , Tony Rodriguez , dshane@shanelaw1.com, Anthony Perez , rblake@avreklaw.com, "Nathaniel S. G. Braun" , Edward Quesada , oscar swinton , Jason Bell , Ibiere Seck , Marcelis Morris , Jake Finkel , d.moeck@gqkffirm.com, "Brian H. Gunn" , kba@atlawoffices.com, Esmeralda Zamora , squan@krolaw.com, William Kronenberg Counsel: I intend to go in ex parte next week to substitute Jenny Rivera's Guardian ad Litem from her aunt, Diafra Rivera Cruz to her mother, America Nunez. Before | represent to the court that said ex parte application will be unopposed, | want all parties to have an opportunity to express their intent to oppose. | imagine there will be no opposition. If you do in fact oppose, please let me know. Otherwise, | will give ex parte notice next week. Thank you. [Quoted text hidden] https://mail.google.com/mail/u/0?ik=64a3a79c66&view=pt&search=all&permmsgid=msg-a%3Ar-8052248690048972608&simpl=msg-a%3Ar-8052248... 1/1 (0ST89D9) PJ0d31 U N O [ e d o SL SI Adod-2 SIy L 2 11 Exhi Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 11/13/2018 Gmail - Rivera v Autobuses Coordinados, et al.: Plaintiff Rivera's Ex Parte Notice to Substitute GAL i » Gmail Jake Finkel Rivera v Autobuses Coordinados, et al.: Plaintiff Rivera's Ex Parte Notice to Substitute GAL 1 message Jake Finkel Tue, Nov 13, 2018 at 10:38 AM To: "Brian H. Gunn" , kba@atlawoffices.com Dear Counsel: Please be advised that Plaintiff Jennifer Judith Rivera Nunez will be going in Ex Parte for an application to substitute her Guardian ad Litem tomorrow, November 14, 2018, at 1:15 p.m. in Department 8 of the Merced Superior Courthouse located at 627 W. 21st Street, Merced, CA 95340. JAKE D. FINKEL, ESQ. 3470 WILSHIRE BLVD. SUITE 830 | LOS ANGELES, CA 90010 T.(213) 787-7411 | F. (323) 916-0521 | E. JAKE@LAWFINKEL.COM Th | LAW OFFICES OF JAKE D. FINKEL This e-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication and/or include attorney work product privileged material, and as such is privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message. https://mail.google.com/mail/u/0?ik=64a3a79c66&view=pt&search=all&permthid=thread-a%3Ar893107014998413108&simpl=msg-a%3Ar7833084475... 7m Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = N N N N N N N N N m e m e m e m e m e m e m e d c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MERCED JENNIFER JUDITH RIVERA NUNEZ, a minor, by and through her Guardian Ad Litem Diafra Rivera Cruz, Plaintiffs, v. AUTOBUSES COORDINADOS USA, INC.; MARIO DAVID VASQUEZ; AND DOES 1 through 100, inclusive, and each of them Defendants. AND CONSOLIDATED ACTIONS Lead Case No.: 16CV-02493 (Consolidated with Case Nos. 16CV-02569, 16CV- 02876, and 16CV-03274) [PROPOSED] ORDER Hearing Date: November 14, 2018 Time: 1:15 p.m. Dept: 8 PLEASE TAKE NOTICE that this matter came on before the Court on November 14, 2018, in the Department 8 of the above entitled Court located at 627 W. 21% Street, Merced, CA 95340, counsel for Plaintiff JENNIFER JUDITH RIVERA NUNEZ, a minor, (hereinafter “Plaintiff”), Jake D. Finkel, Esq. of Law Offices of Jake D. Finkel, APC appeared. No other appearances were made as the Ex Parte was unopposed. The Court having reviewed the papers to it by all parties, and after oral argument on the Moving Party’s moving papers, finds, adjudges and Orders as follows: 1. The Court grants Plaintiff's Ex Parte Application and makes an Order substituting Plaintiff’s biological mother America Nunez in place of Diafra Rivera Cruz as Guardian Ad Litem. IT IS SO ORDERED. 1 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ Th is e - c o p y is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) © 00 J O N Wn BA WwW N = ND N N N ND N N N ND m m E m mm e m m e e m e m c o NN O N Ln BA W N D = O OO 0 0 N D N R E W N = O IT IS FURTHERED ORDERED AS FOLLOWS: DATED: By: Honorable Judge of the Superior Court 2 PLAINTIFE’S UNOPPOSED EX PARTE APPLICATION TO SUBSTITUTE PLAINTIFF'S BIOLOGICAL MOTHER AMERICA NUNEZ AS GUARDIAN AD LITEM IN PLACE OF DIAFRA RIVERA CRUZ