Disability of Parties in Civil Actions

Part 2, Title 3, Chapter 3 of the California Code of Civil Procedure deals with the disability of a party to a civil action.

Section 372 states that, when a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person is required to appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge, in each case.

A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge, expedient to appoint a guardian ad litem to represent the minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate.

The phrase “a person who lacks legal capacity to make decisions” is defined.

A minor 12 years of age or older may appear in court without a guardian, counsel, or guardian ad litem, for the purpose of requesting or opposing a request for any of four specified legal proceedings. The court may appoint a guardian ad litem to assist the minor in obtaining or opposing the order, provided that the appointment of the guardian ad litem does not delay the issuance or denial of the order being sought. In making the determination concerning the appointment of a particular guardian ad litem, the court must consider whether the minor and the guardian have divergent interests.

In addition, a minor may appear in court without a guardian ad litem in the four specified types of proceedings if the minor is a parent of the child who is the subject of the proceedings. 

Before a court appoints a guardian ad litem pursuant to this chapter, a proposed guardian ad litem is required to disclose two specified circumstances to the court and all parties to the action or proceeding.

Section 372.5 authorizes a court to appoint a guardian ad litem under a pseudonym pursuant to the requirements of this section. The court has to make four specified findings and the court may make any further orders necessary to preserve the applicant’s anonymity or to allow the other parties or financial institutions to know the applicant’s identity to the extent necessary to prosecute, defend, or resolve the action. The term “personal identifying information” is defined.

Section 373 requires that, when a guardian ad litem is appointed, he or she is required to be appointed in a specified manner under three conditions.

Section 373.5 states that if, under the terms of a written instrument, a person or persons of a designated class who are not ascertained or who are not in being, or a person or persons who are unknown, may be or may become legally or equitably interested in any property, real or personal, the court in which any action, petition or proceeding of any kind relative to or affecting the property is pending, may appoint a suitable person to appear and act therein as guardian ad litem of the person or persons not ascertained, not in being, or who are unknown.

Section 374 provides that a minor under 12 years of age, accompanied by a duly appointed and acting guardian ad litem, is to be permitted to appear in court without counsel for the limited purpose of requesting or opposing a request for four specified legal actions.

Section 374.5 states that a proceeding initiated by or brought against a minor for any of the injunctions or orders described is required to be heard in the court assigned to hear those matters, with specified exceptions.

Section 375 provides that an action or proceeding does not abate by the disability of a party. The court, on motion, is required to allow the action or proceeding to be continued by or against the party’s representative.

Section 376 specifies that the parents of a legitimate unmarried minor child, acting jointly, may maintain an action for injury to the child caused by the wrongful act or neglect of another. If either parent fails on demand to join as plaintiff in the action or is dead or cannot be found, then the other parent may maintain the action. The parent, if living, who does not join as plaintiff must be joined as a defendant and, before trial or hearing of any question of fact, must be served with summons.

A parent may maintain an action for an injury to his or her illegitimate unmarried minor child if a guardian has not been appointed. Where a parent who does not have care, custody, or control of the child brings the action, the parent who has care, custody, or control of the child must be served with the summons.