Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Super. Ct. No. 30-2009-00265518- PR-GE-LJC, Gerald G. Johnston, Judge. Petition granted. Request for judicial notice. Granted.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner.
No appearance for Respondent.
Deily Law Firm, John P. Deily, Cynthia V. Roehl, Michele Carmeli; Allred, Maroko & Goldberg and Gloria Allred for Real Party in Interest.
OPINION
FYBEL, J.
Introduction
A petition for guardianship of the estate of minor octuplets (the minors) born to Nadya Suleman (mother) is currently pending before the probate court of the Orange County Superior Court. Without ruling on the petition, the probate court ordered a guardian ad litem appointed for the minor octuplets; mother filed a petition for a writ of mandate/prohibition challenging that order.
Probate Code section 1003 requires a court, before appointing a guardian ad litem for a minor, on its own motion, to make a determination that the representation of the minor’s interest in the proceedings would otherwise be inadequate. In this case, we grant the petition and order the probate court to vacate its order appointing a guardian ad litem because there is no evidence in the record to support such a determination.
We also conclude that mother was denied constitutional due process in that she was given no notice a guardian ad litem would be sought.
Statement of Facts and Procedural History
Mother gave birth to the minors on January 26, 2009. On May 4, 2009, Paul Petersen, claiming to be an “interested person,” filed a petition for guardianship of the estate of the minors. Petersen filed an amended petition on June 8. Petersen’s amended petition alleged the appointment of a guardian of the estate of the minors was “necessary or convenient” because “I am informed and believe that the 8 minor children, all of whom have been the subject of intense public interest since their birth on January 26, 2009, are in need of a guardian of the estate in order to protect their potential business opportunities, i.e. possible lucrative endorsement[s] that may arise as a result of their unique status. The appointment of a guardian of the estate will provide assurance that the children are not exploited. Further, the guardian of the estate will be able to insure that each child is independently represented by an agent in connection with negotiating contracts for the[ir] services. [¶] I am informed and believe that their mother, Nadya Suleman, has already entered into contracts with RadarOnline.com to take and to sell video and with Poleris Photos to sell still photographs of the children. It is critically important that the prospective earnings of the children are adequately protected in accordance with California law. It is unknown whether the children[’s] mother has taken the appropriate steps to insure that the earnings of the minor children are placed into blocked accounts so that they may have access to said funds upon their reaching majority. [¶] I have recently discovered articles on the internet announcing that the mother, Nadya Suleman, has entered into an arrangement with a production company, Eyeworks, for a documentary series filming the children’s lives. Attached hereto are copies of the internet articles announcing the deal.” The amended petition contains no allegations of child abuse or neglect.
Pursuant to mother’s request, we take judicial notice of the following documents, all of which were filed in the superior court in In re Guardianship of Estate of Solomon, case No. 30-2009-00265518-PR-GE-LJC: (1) petition for appointment of guardian of the estate of the minors, filed May 4, 2009; (2) amended petition for appointment of guardian of the estate of the minors, filed June 8, 2009; (3) notice to attorneys/probate examiner’s notes; (4) motion to dismiss first amended petition, filed July 17, 2009; and (5) objection and opposition to first amended petition, filed July 17, 2009. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
Mother filed a motion to dismiss the amended petition on the grounds Petersen lacked legal standing and was not an “Interested Party.” Mother also filed an objection and opposition to the amended petition, arguing Petersen lacked legal standing and was not an “interested party”; there was no necessity for the proposed guardianship; and the proposed guardianship would not be in the best interests of the minors.
At a hearing on July 27, 2009, Petersen’s counsel conceded he did not have sufficient evidence to support an ex parte request for a temporary guardianship. The probate court determined the amended petition for appointment of a guardian of the estate was not at issue, and continued the hearing on the guardianship petition to August 31. On its own motion, at Petersen’s request, however, the court appointed a guardian ad litem, pursuant to Probate Code section 1003, “to report to the court as an objective voice to provide information as to what is in the best interest of the children. [¶] I do not view this as an invasion of privacy, nor an invasion of parental rights. I think that it is a necessary component of this process.... [¶]... [¶]... The interests of the children are paramount to this court, and when I have assertions there may be some issues relating to their financial protection, I view it as incumbent upon the court to take some action. [¶] I think the appointment of a guardian ad litem is the least intrusive way to do this. [The guardian ad litem] is going to only have allegiance to the children and a duty to report to the court. He is not going to be cooperating in any fashion with... any of the interested parties here. [¶]... [¶]... The petition only addresses the estate or financial situation of the children, and that will be the extent of his duties. He’s a guardian ad litem to report only with regard to the financial status of the children and whether or not there is any need to protect the finances.”
Discussion
Under California law, “[t]he court may, on its own motion or on request of a personal representative, guardian, conservator, trustee, or other interested person, appoint a guardian ad litem at any stage of a proceeding under this code to represent the interest of any of the following persons, if the court determines that representation of the interest otherwise would be inadequate: [¶]... A minor.” (Prob. Code, § 1003, subd. (a)(1), italics added.) The principal question before us is whether there was sufficient evidence before the probate court to support a determination that representation of the minors’ interests would be inadequate in the absence of the appointment of a guardian ad litem. The statute requires a showing that mother’s representation of the minors would be inadequate; we hold that showing has manifestly not been made. There is no evidence in the record to support such a determination.
Petersen supported his request for appointment of a guardian of the estate of the minors with several articles copied from Internet Web sites, addressing mother’s alleged contracts to participate in a reality television series and to permit videography and still photography of the minors. None of these articles was authenticated, and all of them were inadmissible hearsay evidence. (Evid. Code, §§ 1200, subds. (a) & (b), 1400, 1401.) Even if we were to consider these articles, they merely claim that mother had entered into contracts with third parties; they contain no information regarding mother’s ability (or lack thereof) to represent the minors’ interests in these proceedings.
In reply to mother’s writ petition, Petersen’s counsel claimed, without any citation to the record, the probate court had before it “ample information” supporting the appointment of a guardian ad litem. In addition to the articles mentioned above, the reply stated: (1) the California Division of Labor Standards and Enforcement had made findings of violations of California’s labor laws and imposed fines in connection with filming two of the minors; and (2) other proceedings were pending in Los Angeles County Superior Court regarding potential contracts between mother and a third party. The reply did not cite any evidence supporting any of these assertions. Petersen’s counsel also mentioned this alleged information during the probate court hearing, but no evidence on these topics was provided to the court, nor does such evidence appear in the appellate record. Argument of counsel is not evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1004; Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 409; People v. Lucas (1995) 12 Cal.4th 415, 474; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139.) Inexplicably, Petersen’s reply suggests to this court that the probate court’s order could be based on statements and argument of counsel wholly unsupported by any admissible evidence.
In stark contrast to the utter lack of admissible evidence supporting the appointment of a guardian ad litem for the minors, mother offered evidence in her objection and opposition to the petition for an appointment of a guardian of the estate of the minors. Mother declared under oath she was aware of and would ensure compliance with all laws applicable to any earnings by the minors, and that she was the person best suited to protect the interests of the minors.
The order appointing a guardian ad litem also violated mother’s constitutional due process rights because it was entered without any notice. Our Supreme Court has recognized that, “[s]ince the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him [or her] adequate notice and an opportunity to be heard.” (In re B. G. (1974) 11 Cal.3d 679, 688-689.) Petersen’s amended petition requested the appointment of a guardian of the estate for the minors, pursuant to Probate Code section 1510 et seq. The hearing on July 27, 2009 was to determine whether the amended petition was at issue. In the middle of the hearing, Petersen’s counsel, for the first time, requested the immediate appointment of a guardian ad litem. While Probate Code section 1003 does not specify any particular notice period (as opposed to Probate Code section 1511, subdivision (a), which requires a minimum of 15 days’ notice for a hearing to appoint a guardian of the person or the estate), adequate notice is required to meet due process standards. (See J.N. v. Superior Court (2007) 156 Cal.App.4th 523, 535 [under Code of Civil Procedure section 372, appointment of guardian ad litem requires notice, informal hearing, and opportunity to be heard, as well as “explanation of the guardian ad litem’s purpose and what authority will be transferred to that person”].) Mother was denied a most basic constitutional right, namely, notice.
Disposition
Let a peremptory writ of mandate issue directing the probate court to vacate its order appointing a guardian ad litem. Pursuant to California Rules of Court, rule 8.490(b)(3), this opinion shall become final on filing. This court’s previously issued order staying the appointment of a guardian ad litem shall dissolve when the probate court vacates its order. This court’s previously issued order staying further proceedings in the probate court is dissolved. Petitioner to recover costs.
WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.